Citation Nr: 21008827 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-55 998 DATE: February 18, 2021 ORDER Entitlement to a compensable disability rating for left calf strain is denied. Entitlement to a compensable disability rating for right calf strain is denied. FINDING OF FACT During the entire period on the appeal, the symptomology associated with the Veteran’s bilateral calf strains have not approximated at least moderate muscle injury to muscle group XI. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for left calf strain have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5311. 2. The criteria for a compensable disability rating for right calf strain have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1978 to January 1999, to include service in Southwest Asia. His awards and decorations include the Bronze Star Medal, among many others. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in December 2019, where it was remanded for additional development, and has since returned for further appellate review. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in September 2019. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. The Veteran was awarded service connection for bilateral calf strains in March 2006, rated as noncompensable (zero percent) under 38 C.F.R. § 4.73, Diagnostic Code 5311, based on the opinion of a VA examiner who opined that the Veteran’s calf pain was due to strain and overuse, and at least as likely as not related to in-service pulled hamstrings. After a claim for increased ratings in November 2015, a VA muscle injures examination was afforded to the Veteran in December 2015 to determine the current nature and severity of his calf disabilities. The Veteran’s noncompensable ratings were continued, resulting in the present appeal. The December 2015 VA examiner determined that, although the Veteran was previously rated for a bilateral calf strain and complaints of pain in the calves, his “current history and records [were] consistent with a vascular condition and not a muscle condition of the calves,” noting that the Veteran had recently underwent an endovascular venous ablation in the bilateral lower extremities. It is the Veteran’s contention that he merely filed his original service connection claim for calf strains because he was told his symptoms were indicative of such, and that his service-connected disability should instead be rated as varicose veins under 38 C.F.R. §4.104, Diagnostic Code 7120. A September 2019 Artery and Vein Conditions Disability Benefits Questionnaire (DBQ) completed by the Veteran’s private physician notes a diagnosis of “chronic varicose veins [in] both legs with pain” since the 1990s. No opinion was provided, however, in either the Veteran’s DBQ or the December 2015 VA examination report, as to whether a current vascular diagnosis is a progression of the service-connected disability or if the original diagnosis of calf strains was in error. As such, the claim was remanded by the Board in December 2019 for the RO to afford the Veteran a new VA examination. The record indicates that both a VA Muscle Injuries and an Artery and Vein Conditions examination were afforded in March 2020, where both bilateral calf strains and bilateral varicose veins were diagnosed. An addendum opinion was also provided in October 2020. The addendum opinion notes that it was impossible to determine if the Veteran’s calf strains were previously misdiagnosed as there are overlap of symptoms between the Veteran’s varicose veins and calf strains. Further, the Veteran had no visible varicose veins in the 1980s and 1990s when he became symptomatic with calf pain. The examiner did find however, that medical literature did not support that calf strains can cause varicose veins. The preponderance of the evidence is against a finding that the current varicose veins are a progression of the service-connected calf strains. As such, rating the service-connected calf strains based on the rating criteria for varicose veins is not appropriate. The Veteran is encouraged to file a service connection claim if he believes his varicose veins onset during service, are due to an in-service event, injury or disease, or are caused or aggravated by a service-connected disability. See 38 C.F.R. §§ 3.303, 3.310. However, currently, the varicose veins are not service connected and are not shown to be a progression of the already service-connected calf strains. A compensable rating is not warranted for bilateral calf strains. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The Veteran is currently evaluated for his bilateral calf disabilities under Diagnostic Code 5311, which pertains to injuries to muscle group XI. 38 C.F.R. § 4.73. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). Under Diagnostic Code 5311, a noncompensable (zero percent) rating is assigned for a slight injury; a 10 percent rating is assigned for a moderate injury, a 20 percent rating is assigned for a moderately severe injury, and a 30 percent rating is assigned for a severe injury. 38 C.F.R. § 4.73. A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection. The service department record of superficial wound with brief treatment and return to duty, healing with good functional results, or no cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c). Objectively, there would be a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record (or other evidence) would show in service treatment for the wound, and there would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, the entrance (and if present, exit) scars would be small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance, or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side would be present. A moderately-severe muscle disability is one where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound, and there would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), and, if present, an inability to keep up with work requirements. Objectively, the entrance (and if present, exit) scars would indicate the track of missile through one or more muscle groups. There would be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. A severe muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound, and there would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements. Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track. Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles would swell or harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. Here, the Veteran’s bilateral calves underwent VA examination in December 2015 and again in March 2020. At neither examination did the Veteran’s calves indicate any scars, evidence of fascial defects, or any effect on muscle substance or function. Further, there were no cardinal signs or symptoms of a muscle disability, such as loss of power, weakness, lowered fatigue threshold, fatigue and/or pain, impairment of coordination, or uncertainty of movement. Muscle strength testing was normal, bilaterally. The examinations note simply non-penetrating muscle injuries manifesting the Veteran’s subjective reports of chronic calf pain. There is no other evidence in significant conflict with the above findings upon VA examination. The symptoms as described reflect no more than slight muscle disability. As moderate muscle disability is not shown, the next higher 10 percent rating under Diagnostic Code 5311 is not warranted. See 38 C.F.R. §§ 4.56, 4.73. The Board is sympathetic to the Veteran’s lay statements that he has bilateral calf strains that are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.