Citation Nr: 21077557 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-57 014 DATE: December 30, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection, to include on a secondary basis, for back disability is granted. Entitlement to a disability rating in excess of 20 percent for service-connected left gastrocnemius strain and achilles tendon inflammation is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for back disability is remanded. Entitlement to service connection, to include on a secondary basis, for left hip disability is remanded. FINDINGS OF FACT 1. Entitlement to service connection for back disability was denied in an August 2012 rating decision; the Veteran did not appeal that decision and new and material evidence was not received within a year of the decision. 2. The evidence received since the August 2012 rating decision is new, and is material as it relates to an unestablished fact necessary to substantiate the claim for service connection for back disability. 3. The Veteran's left gastrocnemius strain and achilles tendon inflammation was not manifested by a severe disability during the period on appeal. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied service connection for back disability is final. 38 U.S.C. § 7104 (b); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence added to the record since the August 2012 rating decision is new and material; the claim for entitlement to service connection for back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for a rating in excess of 20 percent for left gastrocnemius strain and achilles tendon inflammation are not met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.56, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2000 to October 2000, and from September 2005 to December 2005. These matters come to the Board on appeal from a July 2015 VA Regional Office (RO) decision. The Veteran testified at a Board hearing before the undersigned in August 2021; a transcript of that hearing is of record. 1. New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection, to include on a secondary basis, for back disability is granted. An August 2012 VA rating decision initially denied entitlement to service connection for back disability. The denial did not find a link between a diagnosed bulging disc and a service-connected left gastrocnemius strain and achilles tendon inflammation. The Veteran did not appeal that decision nor was new and material evidence received within one year of the 2012 decision. Thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in June 2015. A July 2015 rating decision which forms the basis of this appeal again denied the benefit sought. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received or submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the last final rating decision in August 2012, the Board has received a July 2015 VA examination that shows a diagnosis of IVDS. VA treatment records from September 2013 to August 2020 also contain numerous complaints of gait problems. This new evidence relates to an unestablished fact, a proximate link between a current disability and a service-connected disability, necessary to substantiate the claim. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material. Accordingly, the claim of entitlement to service connection for back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to a disability rating in excess of 20 percent for service-connected left gastrocnemius strain and achilles tendon inflammation is denied. The Veteran is service connected for a left gastrocnemius strain and achilles tendon inflammation rated at 20 percent disabling during the period on appeal, which is from up to one year prior to June 16, 2015, the date the Veteran filed an appeal for an increased rating. The Veteran's disability is rated under 38 C.F.R. § 4.73, Diagnostic Code (DC) 5311 for muscle group XI. DC 5311 provides a 20 percent rating for moderately-severe disability, and 30 percent rating for severe disability. 38 C.F.R. § 4.56 describes the cardinal signs and symptoms of muscle disability as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. A "moderately severe" disability of the muscles involves a through-and-through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There must be evidence in the file showing hospitalization for a prolonged period for treatment of the wound. There must be a record of consistent complaint of cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements. The objective findings include entrance and, if present, exit scars indicating the track of missile through one or more Muscle Groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and tests of strength and endurance compared with sound side must demonstrate positive evidence of impairment. Id. § 4.56(d)(3). A "severe disability" of the muscles involves a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There must be evidence showing hospitalization for a prolonged period for treatment of the wound. There must also be a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and if present, evidence of inability to keep up with work requirements. The objective findings include ragged, depressed and adherent scars indicating wide damage to Muscle Groups in missile track, palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area, muscles swelling and hardening abnormally in contraction, and tests of strength, endurance, or coordinated movements compared with the corresponding muscles of uninjured side indicating severe impairment of function. Id. § 4.56(d)(4). Evaluation of muscle injuries is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56 (d). Section 4.56 is a totality of the circumstances test; no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006) (citing Robertson v. Brown, 5 Vet. App. 70 (1993)). The Board notes that in order to warrant a higher rating, the Veteran's symptoms must at least most closely approximate that of a "severe disability." At his Board hearing, the Veteran contends that his left leg swells up and cramps with aching pain that goes all the way up to the left thigh. He stated that he had this pain 5 times a week, and the VA issued him a TENS unit for treatment. The Veteran stated that he elevates his leg and uses a cold compress to relieve symptoms. The Veteran stated that he is a medic by trade, and changed his job duties away from the ambulance to the emergency room so he can have less weight bearing. The Veteran attended VA muscle injuries examination in July 2015. There, the examiner described the Veteran's Group XI muscle injury as non-penetrating. He described a history of extensive muscle hernia of the left calf, and pain without muscle weakness. There were no fascial defects, and his injury did not impact muscle function or substance. The injury did not have a scar. The Veteran had full muscle strength and no atrophy. There was no evidence of a shrapnel injury, and the examiner opined that the injury did not impact the Veteran's ability to work. The Veteran underwent another VA muscle injuries examination in August 2016. There, the examiner stated that the Veteran had no history of extensive muscle hernia. With regard to cardinal signs and symptoms of muscle injuries, the examiner indicated that the Veteran had occasional fatigue-pain. The Veteran had 4/5 achilles tendon strength on the left, with no muscle atrophy. The examiner also noted that the Veteran would be limited to occupational activities without prolonged standing or walking. He was also noted to have an antalgic gait. The medical evidence of record, to include VA treatment records, does not show that the Veteran received hospital treatment for his muscle injury, nor does the Veteran have scarring. The medical evidence of record also does not show consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries. The medical evidence of record shows mildly decreased strength on the left lower extremity, as well as occasional fatigue-pain. The Veteran testified that he has aches and cramping 5 days a week. The Veteran did not indicate the duration of his pain, but the Board notes that the August 2016 VA examiner did not indicate that such pain was "consistent." Despite the record showing an altered gait, the record does not show problems with coordination or movement. The Board also notes that the Veteran testified that his work activities are impacted by his disability. The Veteran's contention is supported by the August 2016 VA examiner's findings regarding limited standing and walking. The Veteran's complaints are evidence of an inability to keep up with work requirements, as discussed in the "moderately severe" rating criteria. The slightly decreased strength on the left also serves as evidence of impairment. However, the Board finds that the Veteran's injury does not cause a severe impairment of function. Such a finding is supported by the findings of the two VA examiners both noting no fascial defects or impairments of substance and function. Such findings are not otherwise found in the medical evidence of record. Further, the Veteran testified that he is still able to function as a medic in the emergency room, suggesting his impairments are not severe. To the extent the Veteran contends that his symptoms are more severe than found in the medical evidence of record, the Board notes that the Veteran possesses a medical background, and nonetheless competent to attest to the severity of observable symptoms such as pain. However, the Board affords greater probative weight to the objective findings of the two VA examiners and the medical treatment records on file in their determination that the Veteran's symptoms are not severe in nature due to the Veteran's own statements about his ability to function. Given the above, the Board finds that the most probative evidence of record shows that the Veteran's muscle injury was not manifest by a severe disability during the period on appeal. As such, entitlement to a rating in excess of 20 percent for left gastrocnemius strain and achilles tendon inflammation is denied. REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for back disability is remanded. 2. Entitlement to service connection, to include on a secondary basis, for left hip disability is remanded. The Veteran attended VA examinations in July 2015 to determine the nature and etiology of the Veteran's left hip and back disabilities. The Board notes that the Veteran contends that his left leg injury has forced him to compensate while walking and has caused his hip and back problems. The examiner opined that the Veteran's left hip and back were less likely than not proximately due to or the result of the Veteran's service-connected left gastrocnemius strain and achilles tendon inflammation. The examiner reasoned that the left gastrocnemius muscle and achilles tendon do not have a pathophysiological or anatomical relationship to the hip or lumbar conditions. The examiner then provided that there was no objective evidence of antalgic gait patterns during physical examination, and no evidence of weight shifting during ambulation. The Board interprets the examiner's rationale as an implication that an altered or antalgic gait may be relevant to determining whether a relationship exists between his claimed disabilities and his service-connected left leg muscle injury. The Board finds the examiner's rationale inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board first notes that the July 2015 VA examiner did not provide an opinion that addresses whether the Veteran's service-connected left leg muscle injury aggravated either the hip or the back disabilities found on examination. Such an opinion is necessary to properly evaluate secondary service connection and must be obtained on remand. Second, the examiner's rationale regarding the absence of an antalgic gait on examination fails to address the multiple findings in the medical evidence of record related to the Veteran's gait. The Board notes that VA treatment records show that the Veteran was undergoing gait training in September 2013 due to hip pain. In August 2014, VA treatment records showed a gait and balance problem due to muscle weakness. After the Veteran's July 2015 VA examination, an October 2015 VA treatment record showed a gait and balance deficit. Further, on an August 2016 VA muscle injuries examination, the examiner noted an antalgic heel toe progression in the left foot. Thus, an addendum opinion is necessary that considers the Veteran's contention that his gait caused his hip and back disabilities in the context of the entire medical record on appeal, and not simply the findings of the July 2015 physical examination. The matters are REMANDED for the following action: 1. Arrange for an addendum opinion by the July 2015 VA hip and back examiner, or a suitable substitute. Upon review of the record, the examiner must provide an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip disability is proximately due to the Veteran's service-connected left gastrocnemius strain and achilles tendon inflammation. The examiner should address the Veteran's contention that he compensated for his service-connected disability by altering his gait, causing his claimed disabilities. The examiner must address the medical evidence of record showing complaints of a gait disturbance. A complete rationale must accompany any conclusion reached. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip disability was aggravated by his service-connected left gastrocnemius strain and achilles tendon inflammation. A complete rationale must accompany any conclusion reached. c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability is proximately due to the Veteran's service-connected left gastrocnemius strain and achilles tendon inflammation. The examiner should address the Veteran's contention that he compensated for his service-connected disability by altering his gait, causing his claimed disabilities. The examiner must address the medical evidence of record showing complaints of a gait disturbance. A complete rationale must accompany any conclusion reached. d) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was aggravated by his service-connected left gastrocnemius strain and achilles tendon inflammation. A complete rationale must accompany any conclusion reached. 2. After completion of the above, review the expanded record, including any evidence entered since the most recent statement of the case, and determine whether the benefit sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.