Citation Nr: 21005608 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-05 764 DATE: February 2, 2021 ORDER A rating in excess of 40 percent for service-connected myositis ossificans of the right anterior thigh muscle is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period from March 20, 2008 to August 27, 2010 is denied. FINDINGS OF FACT 1. The Veteran's service-connected myositis ossificans of the right anterior thigh muscle is productive of severe impairment. Ankylosis, hip flail joint, malunion, a false joint, nonunion or any current fractures is not demonstrated. 2. The Veteran’s service-connected disability is not shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background from March 20, 2008 to August 27, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent fir myositis ossificans of the right anterior thigh muscle have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes (DCs) 5023, 5314. 2. The criteria for entitlement to a TDIU from March 20, 2008 to August 27, 2010 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. LEGAL CRITERIA Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. INTRODUCTION The Veteran served on active duty in the United States Army from November 1975 to July 1986, as well as additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Board remanded these issues on appeal in November 2019 for further development. In pertinent part, the Board instructed the RO to readjudicate the Veteran’s claim for an increased rating for his right thigh disability with consideration of all the applicable diagnostic codes. The RO readjudicated the claim in August 2020. Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Myositis Ossificans of the Right Anterior Thigh Muscle The Veteran’s right thigh muscle disability has been evaluated as 40 percent disabling under DC 5023-5314. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5023 contemplates myositis ossificans and is rated on the basis of limitation of motion of the specific joint as degenerative arthritis. DC 5314 contemplates muscle group XIV (extension of knee (2, 3, 4, 5); simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial band, acting with XVII (1) in postural support of body (6); actin with hamstrings in synchronizing hip and knee (1,2). Anterior thigh group: (1) Sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris) and assigns a maximum 40 percent rating for severe impairment of function. A July 2008 VA muscles examination shows that the Veteran’s right thigh muscle disability was manifested by pain with prolonged walking, stair climbing, prolonged standing, prolonged driving and squatting. He reported those activities caused his right thigh muscle to tense up and ache. He experienced flare-ups of thigh muscle pain with overuse of the thigh muscle several times per month. He experienced spasm, muscle twitching and shaking. He reported these manifestations were relieved by elevation of the leg. He did not experience pain during spasms. Muscle relaxers and Vicodin helped to decrease the muscle spasm. He rated his thigh muscle pain a 4 out of 10. He reported that muscle spasms and tightness occurred at night, several times per week requiring him to stand, walk and stretch the muscle which usually relieved the discomfort. On physical examination he demonstrated good overall muscle strength; however, there was mild weakness in strength on the right quadriceps muscle group compared to the left quadriceps muscle group. When the right leg was lifted and the quadriceps muscle was contracted, there was a golf ball sized lump palpable within the lower quadriceps muscle which was also visible. When the muscle was relaxed, the lump could not be seen or felt. He had full range of motion of the right hip and knee. There was no muscle atrophy or muscle spasm. X-ray findings of the right femur were normal. The February 2014 Report of VA hip and thigh conditions examination documents the Veteran’s complaint of chronic aching right thigh and hip, thigh worse than hip. He rated the thigh pain a 6 out of 10; with activity, 8 out of 10. Thigh muscle relaxer, Hydrocodone and home exercises provided some relief. He reported that he experienced weekly flare-ups of right leg pain resulting in weakness and balance problems. Sitting, resting and using ice packs helped to relieve the flare-ups of pain. Range of motion findings of the right hip were as follows: flexion to 115 degrees (no objective evidence of painful motion) and extension to 10 degrees (no objective evidence of painful motion). Abduction was not lost beyond 10 degrees; adduction was not limited such that the Veteran could not cross his legs and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. He was able to perform repetitive-use testing without additional limitation in range of motion of the hip and thigh. He had localized tenderness or pain to palpation in the joint/soft tissue of the right hip. Muscle strength testing was normal and he did not have ankylosis. There was also no evidence of malunion or nonunion of the femur, a flail hip joint, or a leg length discrepancy. He had not had joint replacement or recent surgery. He did not have scars; however, he did have a palpable lump in the anterior right thigh, 3 cm in circumference. He regularly used a cane. The examiner indicated that there was not functional impairment of the right hip/thigh such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Arthritis of the hips was documented on x-ray. The examiner indicated that the Veteran’s hip and/or thigh condition impacted his ability to work in that it limited standing, walking or stair climbing. The February 2014 VA muscles examination documents the Veteran’s complaint of less strength in his right leg with increased cramping since his last examination. He reported that his right hip ached but less than his right thigh. The examiner documented that the Veteran had injury to Muscle Groups XIV and XV on the right. The Veteran had some impairment of muscle tonus. Signs and symptoms of his muscle disability included lowered threshold of fatigue and fatigue-pain. He had full muscle strength and there was no muscle atrophy. The examiner indicated that the Veteran’s hip and/or thigh condition impacted his ability to work in that it limited standing and climbing. The September 2018 Report of VA hip and thigh conditions examination documents the Veteran’s complaint that he had a large lump in his right anterior thigh muscle that caused pain when he moved his leg. He reported that he had difficulty fully bearing weight on the right leg and he had decreased range of motion. He reported that he experienced flares of pain with prolonged walking (more than 20 minutes) climbing stairs and ladders and prolonged standing (more than 20 minutes). He reported having functional loss or functional impairment of the hip manifested by lack of endurance and pain which limited activity and caused decreased range of motion of the right hip. Range of motion findings of the right hip were as follows: flexion to 80 degrees; extension to 30 degrees; abduction to 35 degrees; and, adduction to 25 degrees, with pain in flexion, extension and abduction. Adduction was not limited such that the Veteran could not cross his legs. His limitation in range of motion in the hip caused difficulty climbing stairs. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. He was able to perform repetitive-use testing without additional limitation in range of motion of the hip and thigh. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or during a flare-up. He had active movement against some resistance of the right hip with flexion (4/5) but otherwise muscle strength testing was normal. He had slight muscle atrophy (normal: 41.5 cm; documented:40 cm) in the right lower extremity. There was no right side ankylosis. A firm, oval shaped mass in the right anterior thigh muscle was non-tender to palpation and visible with contraction of the thigh muscle. The examiner indicated that there was not functional impairment of the right hip/thigh such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. X-ray findings of the right femur showed possible chronic changes at the musculotendinous junction of the rectus femoris. There was no evidence of grossly abnormal enhancement or signs of acute bony pathology. The examiner remarked that the documented ranges of motion were applicable to passive motion, active motion, in weight bearing and non-weight bearing. The Veteran exhibited no pain with passive range of motion or during non-weightbearing. The September 2018 Report of VA muscle injuries examination documents the Veteran’s complaint that he had a large lump in his right anterior thigh muscle that caused pain when he moved his leg. He reported that he had difficulty fully bearing weight on the right leg and he had decreased range of motion. He reported that he experienced right leg tremors with overuse of the right leg. The examiner documented that the Veteran had injury to Muscle Groups XIV on the right. The Veteran had some loss of muscle substance and visible or measurable atrophy. Signs and symptoms of his muscle disability included consistent loss of power, lowered threshold of fatigue and uncertainty of movement. He had slightly diminished muscle strength testing in muscle group XIV on the right and had documented muscle atrophy. The examiner indicated that there was not functional impairment of the right hip/thigh due to the muscle disability such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. A firm, oval shaped mass in the right anterior thigh muscle was non-tender to palpation and visible with contraction of the thigh muscle. X-ray findings of the right femur showed no evidence of acute bony involvement. MRI findings of the right femur showed possible chronic changes at the musculotendinous junction of the rectus femoris. There was no evidence of grossly abnormal enhancement or signs of acute bony pathology. The examiner indicated that the Veteran’s hip and/or thigh condition impacted his ability to work, causing functional impairment in all fields of labor that are sedentary and light, medium or heavy manual labor. The Veteran is in receipt of the maximum rating allowable for muscle injury of Muscle Group XIV. He has not demonstrated impairment of Muscle Group XVII. Thus, a rating in excess of 40 percent may not be awarded under any other diagnostic criteria contemplating muscle injuries of the pelvic girdle and thigh. The 40 percent rating adequately contemplates the severity of his myositis ossificans of the right anterior thigh muscle disability and a rating in excess of 40 percent is not warranted. 38 C.F.R. § 4.73, DC 5414. Additionally, a rating in excess of 40 percent is not warranted as the evidence documented above shows there is no evidence of ankylosis, hip flail joint, malunion, a false joint, nonunion or any current fractures (see February 2014 and September 2018 Reports of VA hip and thigh conditions examination). 38 C.F.R. § 4.71a, DC 5023, 5254, 5255. In addition, the examiners have specifically indicated that there was not functional impairment of the right hip/thigh such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Thus, a rating in excess of 40 percent may not be awarded under any other diagnostic criteria contemplating hip disabilities. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU From March 20, 2008 to August 27, 2010 In an August 2020 rating decision, the RO awarded a TDIU effective August 27, 2010. As the claim for an increased rating for the service-connected myositis ossificans of the right anterior thigh muscle disability was on appeal from March 20, 2008, the claim for a TDIU prior to August 27, 2010 remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise); Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability evaluation on the basis of individual unemployability (TDIU), whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. Prior to August 27, 2010, service-connection was in effect for myositis ossificans of the right anterior thigh muscle (40 percent disabling). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The July 2008 VA muscles examination reflects that prolonged walking, stair climbing, prolonged standing, prolonged driving and squatting caused his right thigh muscle to tense up and ache. He experienced flare-ups of thigh muscle pain with overuse of the thigh muscle several times per month and experienced spasm, muscle twitching and shaking. Elevation of the leg provided relief and muscle relaxers and Vicodin helped to decrease the muscle spasm. He rated his thigh muscle pain a 4 out of 10. He demonstrated good overall muscle strength; however, there was mild weakness in strength on the right quadriceps muscle group compared to the left quadriceps muscle group. When the right leg was lifted and the quadriceps muscle was contracted, there was a golf ball sized lump palpable within the lower quadriceps muscle which was also visible. When the muscle was relaxed, the lump could not be seen or felt. He had full range of motion of the right hip and knee. There was no muscle atrophy or muscle spasm. X-ray findings of the right femur were normal. (Continued on the next page)   Despite the Veteran’s contentions, that “there isn’t a job out there I can do with these problems,” the evidence does not show that the Veteran’s service-connected myositis ossificans of the right anterior thigh muscle prevented him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background for the period from March 20, 2008 to August 27, 2010. His application for TDIU reflects that he had been employed as a receiving clerk. There is simply no indication from the record that his service-connected myositis ossificans of the right anterior thigh muscle prevented him from performing duties required of a receiving clerk during the period from March 20, 2008 to August 27, 2010. Accordingly, the Board finds that a grant of a TDIU rating is not warranted for the period from March 20, 2008 to August 27, 2010. G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rob Schwartz, Associate 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.