Citation Nr: 21039710 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-27 268 DATE: July 1, 2021 ORDER Entitlement to a 10 percent rating for left groin strain is granted. FINDINGS OF FACT 1. The Veteran's service-connected left groin strain is manifested by no more than slight disability to the left pelvic girdle, Muscle Group XVI. 2. For the entire rating period, the Veteran had at least 80 degrees flexion in the left leg, 10 degrees extension, 20 degrees abduction, and 30 degrees external rotation with evidence of pain. Adduction was not limited such that the Veteran could not cross his legs. There were no additional limitations to range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance. 3. The Veteran did not have removal of half or more of the penis, nor did he have voiding disfunction. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left groin strain under Diagnostic Code 5316, Muscle Group XVI, are not met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 3.102, 4.73, Diagnostic Codes 5316. 2. The criteria for an initial 10 percent rating for left groin strain under Diagnostic Code 5252, based on limitation of motion with pain, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 3. The criteria for a compensable rating for left groin strain under Diagnostic Code 7520 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115B, Diagnostic Code 7520. REASONS AND BASES FOR FINDING AND CONCLUSION This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in October 2019 for a VA examination to address the Veteran's left groin strain with attention to the muscular aspects of his disability. The requested development was completed. The Veteran testified before a Veterans Law Judge at a July 2019 videoconference at a hearing. A transcript of the hearing is of record and has been reviewed. The Veteran was informed in an April 2021 notice letter that the Veterans Law Judge who conducted the July 2019 hearing is no longer employed by the Board and he was offered an opportunity to request another optional Board hearing. He was informed that if he did not respond within 30 days from the date of the letter with a hearing election, the Board will assume that he does not want another hearing. The Veteran did not respond to the April 2021 letter. Thus, the Board will proceed with a decision on the appeal. Entitlement to a compensable rating for left groin strain The Veteran contends that he is entitled to a higher rating for service-connected left groin strain. He testified in July 2019 that his disability prevents squatting, twisting, and running. He reported that it resulted in tightness in the muscles on the left side, pain, and limping. He reported that while he was rated based on penile dysfunction, his impairment was actually a muscle injury. Service-connected left groin strain was rated initially assigned a noncompensable rating under Diagnostic Code 7520 for removal of half or more of the penis. The Board finds that consideration of the Veteran's disability under the rating criteria for muscles, and limitation of motion of the thigh is warranted. While the record shows that the Veteran also has nonservice-connected disabilities of the left hip, where it is not possible to separate the effects of the service-connected left groin strain from the left hip diagnoses, such signs and symptoms have been attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). Diagnostic Code 5316 addresses injuries to Muscle Group XVI, Function: Flexion of the hip. Muscle Group XVI involves the pelvic girdle group: (1) psoas; (2) illacus; and (3) pectineus. Under Diagnostic Code 5316, a slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 30 percent rating, and a severe disability warrants a 40 percent rating, the highest rating available under the diagnostic code. 38 C.F.R. § 4.73. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d). A through-and-through injury shall be rated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56 (b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56 (c). A slight muscle injury anticipates a simple muscle wound without debridement or infection and with a history of a superficial wound with brief treatment and no cardinal signs or symptoms of muscle disability, such as loss of power, weakness, fatigue-pain, or impairment of coordination and uncertainty of movement. Objective findings of a slight disability include a minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56 (d)(1). Moderate disability of the muscles results from 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. History and complaint include service department or other evidence showing in-service treatment for the wound, and consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings include entrance and (if present) exit scars 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 fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). The Board finds that for the entire rating period, the Veteran's left groin strain is manifested by no more than slight disability to the left pelvic girdle, Muscle Group XVI. An October 2020 VA muscle injuries examination shows that the Veteran's left groin strain represented an injury to Muscle Group XVI affecting the left side. He had a non-penetrating muscle injury and his muscle injury did not affect muscle substance or function. He did not have loss of power, weakness, lowered threshold fatigue, impairment of coordination, or uncertainty of movement. He had normal strength on hip flexion, and no muscle atrophy. The Veteran was assessed with groin pain with no functional impact. Under Diagnostic Code 5316, a 0 percent rating is assigned for a slight disability. A higher 10 percent rating is not warranted unless there is moderate disability of the muscles resulting from through and through or deep penetrating wound of short track. The October 2020 VA examination shows that the Veteran had a non-penetrating muscle injury, and service treatment records do not identify a through and through or deep penetrating wound. Instead, the record shows that in October 1992, the Veteran was seen after a fuel tank fell across his thigh, and he had tenderness to palpation in the pelvic and groin area. He was treated with ice and motrin. Accordingly, the Board finds that left groin strain is manifested by no more than slight disability to the left pelvic girdle, Muscle Group XVI, and a compensable rating is not warranted under Diagnostic Code 5316. At the July 2019 hearing, the Veteran stated that his left groin strain disability started at the point where the leg joins the hip and extends down into the groin underneath the scrotum area with limitation of motion in the left leg as it prevented him from running, exercising, squatting, and caused tightness and limping. The October 2020 VA examination identified the presence of groin pain. As such, the Board finds that consideration of limitation of motion in the thigh is warranted under 38 C.F.R. § 4.71a. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). For the entire rating period, the Veteran had at least 80 degrees flexion in the left leg, 10 degrees extension, 20 degrees abduction, and 30 degrees external rotation with evidence of pain. Adduction was not limited such that the Veteran could not cross his legs. There were no additional limitations to range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance. A September 2020 VA orthopedic examination reflects nonservice-connected trochanteris pain syndrome in both hips, and status post left hip arthroscopy with labrum and iliofemoral ligament repair. As noted above, where limitation of motion due to the Veteran's nonservice-connected left hip disability cannot be differentiated from limitation of motion due to left groin strain, such signs and symptoms have been attributed to the service-connected disability. The VA examination reflects 80 degrees flexion in the left leg, 10 degrees extension, 20 degrees abduction, and 30 degrees external rotation with evidence of pain. Adduction was not limited such that the Veteran could not cross his legs. There was no additional functional loss after three repetitions of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not report flare-ups. The Veteran, however, did have objective evidence of localized tenderness or pain to palpation. A prior April 2017 VA examination showed full range of motion on flexion, extension, abduction, and adduction with no additional limitations with repetitive use testing. Pain was noted on examination, but the examiner stated that it did not result in functional loss. The Veteran noted flare-ups in the left hip described as more pain than usual. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. A July 2017 VA examination showed normal range of motion in the left leg, but did not adequately address whether the Veteran had functional limitations to range of motion or on repetition due to pain, flare-ups of pain, fatigue, incoordination, weakness, or lack of endurance, and thus, the examination is inadequate for evaluating the Veteran's disability. Based on the evidence discussed above, the Board finds that the Veteran has limitation of flexion in the left thigh to 80 degrees. Pain was noted at the time of both April 2017 and September 2020 VA orthopedic examinations, and the October 2020 VA muscle injury examination noted pain associated with the left groin strain disability. Additionally, the Veteran had provided credible testimony identifying pain in the area of the left groin with walking, squatting, running, or twisting. Thus, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5252 where the Veteran had non-compensable limitation of flexion with evidence of chronic pain and flare-ups of pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the next higher 10 percent rating is not warranted where the Veteran's disability did not result in a compensable degree of limitation of motion in the left leg. April 2017 and September 2020 VA examinations show that there were no additional limitations to range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance. The Board acknowledges the Veteran's lay reports of tightness in the muscles of the left groin, and functional loss due to pain and pain during flare-ups. The Board has assigned a 10 percent rating under Diagnostic Code 5252 based on such functional limitations where limitation of motion would otherwise be noncompensable. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation does not result in symptoms more nearly approximating flexion limited to 45 degrees. For these reasons, the Board finds that a 10 percent rating, but no more, is warranted under Diagnostic Code 5252. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board finds that the Veteran does not have extension of limited to 5 degrees, external rotation limited to 15 degrees, abduction limited to 10 degrees, or limitation of adduction such that the Veteran could not cross his legs to warrant a separate rating under other potentially applicable diagnostic codes pertaining to limitation of motion of the left thigh or leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251 and 5253. Pain and painful motion have already been considered in assigning his 10 percent rating under Diagnostic Code 5252 and the same symptoms cannot be considered in assigning a rating under Diagnostic Codes 5251 or 5253. Finally, the Board has considered whether a rating is warranted under Diagnostic Code 7520. December 2019 and May 2015 VA examinations show that the Veteran did not have removal of half or more of the penis to warrant a rating under Diagnostic Code 7520, and he did not have voiding disfunction to warrant a rating based on such. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.