Citation Nr: 21023326 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-13 001 DATE: April 22, 2021 ORDER An initial 10 percent rating for limitation of motion (right hip), due to right hamstring strain, is granted. FINDING OF FACT There was enough indication of probable painful limited motion of the hip that corresponds to a minimum compensable rating. CONCLUSION OF LAW The criteria are met for an initial 10 percent rating for limitation of motion (right hip), due to service-connected right hamstring strain. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.59; 4.71a, Diagnostic Code 5252 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Navy from January 2010 to November 2011. In December 2018, the Board remanded this case for further evidentiary development, to include obtaining further medical records and then scheduling a VA Compensation and Pension examination on the claim. On remand, the RO obtained medical records, but the Veteran did not report for examination in October 2019. The matters have since returned to the Board, and the Veteran’s representative asks the case to be rated on the record and arguments the Veteran had provided to the VA Regional Office (RO) for consideration. As further preliminary matter, the Board finds that the notice and assistance obligations to the Veteran under The Veterans Claims Assistance Act of 2000 (VCAA) were sufficiently met. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2020). Those duties were met by obtaining VA and private outpatient medical records, arranging for VA examinations, and scheduling an updated examination per prior Board remand that requested this additional development. The Veteran did not request a hearing in this matter. Additionally, the claim can be rated on the evidence of record even without the 2019 scheduled examination, because of the extent of findings already available. See 38 C.F.R. § 3.655(b). There is no indication of further evidence or information to obtain. The Board will proceed to the merits of the claim. The claim for an initial 10 percent rating for service-connected right hamstring strain. This claim on appeal is for a compensable rating (in excess of 0 percent) for a right hamstring strain, Muscle Group XIII (originally claimed as a right thigh condition). See 38 C.F.R. § 4.73, Diagnostic Code 5313 (2020). Diagnostic Code 5313 provides for the evaluation of impairment of muscles associated with Muscle Group XIII, a posterior thigh group that includes the hamstring complex of 2 joint muscles – (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus. The function of this Group is (1) extension of the hip and flexion of the knee; (2) outward and inward rotation of the flexed knee; and (3) acting with rectus femoris and sartorius synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at the knee joint. Further, a moderate disability warrants a 10 percent rating. A 30 percent rating is applicable for a moderately severe disability. A 40 percent rating is for consideration where there is evidence of a severe muscle injury. 38 C.F.R. § 4.73, Diagnostic Code 5313. For purpose of applying Diagnostic Code 5313, there are standard definitions according to the rating procedures that specify the various gradations of muscle injury for VA disability evaluation purposes. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). A slight disability of muscles is described as a simple wound of muscle without debridement or infection. The service department records would demonstrate a superficial wound with brief treatment and return to duty. Healing would be shown as having been with good functional results. No cardinal signs or symptoms of muscle disability would be shown and the scar would be minimal with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate disability of muscles is signified by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record or other evidence of in-service treatment for the wound should show record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings will include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and 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. 38 C.F.R. § 4.56(d)(2). Under VA law, the implementation of another diagnostic code is permitted if warranted under the circumstances of a particular case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld if supported by explanation and evidence); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Under Diagnostic Code 5252, for limitation of flexion of the thigh, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating where limited to 30 degrees; a 30 percent rating where limited to 20 degrees; and a maximum assignable 40 percent rating, where limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Board considers this a sufficiently warranted change in rating criteria to the section for orthopedic disorders, because so far actual signs and symptomatology from a muscle injury are limited, while the Veteran and her representative still clearly point out there is limitation of motion on daily use of the right leg. This affected the right thigh and hip region. There is a potential likelihood of separately ratable impairment and that would be non-pyramiding, in that it avoids the issue of separately rating the same impairment twice. See 38 C.F.R. § 4.14 (precluding compensation for the same manifestations under different diagnoses); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Based on the findings in this case, the Board is awarding an initial 10 percent rating for right hamstring strain, on the basis of the VA rating criteria as indicated above, specifically for limitation of motion of the hip joint region as the evidence suggests that is the affected area. The relevant medical evidence and lay witness statements are indicated below. The timeframe being considered for purposes of the claim is from November 15, 2011 onward. Also for sake of complete discussion of the evidence of record the symptomatology of any potentially ratable muscle injury likewise is being discussed here. On VA examination July 2011, the condition of the right thigh caused pain with exercise, 6 on scale of 1 to 10. It was elicited by physical activity, relieved by rest. The Veteran could function without medication, did not need treatment or hospitalization, there was no incapacitation. There was claimed functional impairment and limitation of motion due to pain with movement. Musculoskeletal examination showed normal posture, normal gait and with no signs of abnormal weightbearing, normal exam of femur, tender tibia and fibula otherwise normal exam, both hips normal in appearance and no ankylosis. Range of motion for the right hip was flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation 60 degrees, internal rotation 40 degrees. Repetitive range of motion was possible without additional limitation of motion due to pain, fatigue, weakness, lack of endurance and coordination. The diagnosis was in relevant part, right hamstring strain, Muscle Group XIII. Subjectively there was pain. Objectively there was a tender right hamstring, otherwise normal exam. In a December 2012 statement, which was also a Notice of Disagreement (NOD) filed as to the RO rating decision that denied the claim for a compensable rating for the service-connected right hamstring strain, the Veteran indicated the basis for disagreement. The Veteran explained that there was “severe diminished range of motion due to this ‘strain’. I personally feel that it healed improperly and left scar tissue that causes extreme pain with stretching and certain movements. Because of the pain with limited ROM [Range of Motion] I believe I warrant at least 10 percent.” On VA examination again in July 2013 that was for purpose of evaluating muscle injuries, the diagnosis at outset was right hamstring strain, Muscle Group XIII. It was noted that this was a non-penetrating muscle injury, it occurred as a result of prolonged strenuous physical activities such as prolonged running and hiking / road marching. The condition had stayed the same with “severe pain with certain movements and stretching.” There was no scar associated with the injury, no known fascial defects, no effect on muscle substance of function. There was present an occasional fatigue pain. Muscle strength testing was normal. There was no muscle atrophy. The functional impact of the muscle injury on ability to work was impaired prolonged standing, walking, running. On examination again January 2015, it was indicated similar to previously that there was present a non-penetrating muscle injury. There was again notated a muscle injury affecting Muscle Group XIII. There were no scars associated with a muscle injury. There were no known fascial defects. Muscle injury did not affect muscle substance or function. Under the category involving cardinal signs and symptoms of muscle disability, there was present lowered threshold of fatigue on a consistent basis, and also present was fatigue-pain on a consistent basis. Muscle strength was 5/5. There was not present muscle atrophy. There were no other pertinent physical findings, complications, conditions, signs or symptoms. The functional impact of the muscle injuries on the claimant’s ability to work was impaired prolonged standing, walking, running. On a March 2015 VA Form 9 (Substantive Appeal to the Board), the Veteran stated that despite lack of muscle injury from a penetrating wound, there still was a large amount of pain whenever using the leg (while running, stretching, taking long strides and other exercises involving specific movements of the right leg.) There was also a limited range of motion and increased muscle fatigue. These issues required that any exercise program was in a limited manner, which according to the Veteran, could result in health issues. It was further described that the symptoms overall appeared to place the condition in the “moderate” category. It was indicated as to the condition, it was “an internal strain that gradually worsened, causing scar tissue that is now debilitating.” The Veteran suggested that the moderate level designation would apply here, or if not available, “a different category that better matches my disability.” She further noted that she suffered strain worsened by scar tissue, painful limited motion, moderate impairment of ability to carry out daily tasks, and that her condition had gotten progressively worse over time since original injury. The Board’s December 2018 remand requested VA examination to further consider the condition, including with more recent findings and additional range of motion studies. As indicated, the Veteran did not appear for the October 2019 scheduled VA examination, there was not a request to reschedule the examination, and the Veteran’s representative has since asked that the claim would be rated on the record. According to the above, the Board finds sufficient basis for a 10 percent rating, if not completely proven in all aspects, and resolving any doubt on the key outstanding issues, the 10 percent evaluation appears to be warranted. Essentially, it seems credible that with overuse there is mild to moderate fatigue pain and/or lowered threshold of fatigue, because successive VA examiners notated it, the Veteran describes it, and even without greater more characteristic symptoms of muscle injury, that would not be unexpected from the condition, particularly if as the Veteran indicated there was any scar tissue that potentially formed over time. Arguably a better depiction of the condition might always help, that was the reason for the examination, still there is enough here to reasonably assume there is painful limitation of motion in situations with functional loss from pain, weakness, fatigue, and repetitive use. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). See also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020). This would affect hip limitation. A service-connected right knee disability is already an adjudicated service-connected condition. Again, while not perhaps exactly the clearest disability picture the Board will resolve reasonable doubt favorably. See 38 C.F.R. § 4.3. A 10 percent rating would reflect the minimum available rating under Diagnostic Code 5252, based on painful motion and applicable precedent that warrants rating procedure in this manner. See Sowers v. McDonald, 27 Vet. App. 472 (2016) (indicating the validity of the rating practice and view that a claimant may obtain, pursuant to 38 C.F.R. § 4.59, the minimum compensable rating available for the joint affected by a particular service-connected disability). Apart from this outcome, there is not otherwise indicated a moderate or moderately severe muscle injury as might warrant any higher rating directly under the rating criteria for muscle injury at section 4.73, in light of the relatively limited scope of the initial injury, generally good retained functional capacity and absence of continue injury besides an actual muscle strain. For these reasons, affording the Veteran the benefit of the doubt, a 10 percent initial rating is warranted from the effective date of service connection. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.