Citation Nr: 21041102 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-42 304 DATE: July 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for service-connected right tibiailis anterior muscle damage (a right calf disability) is denied. FINDING OF FACT 1. For the period prior to October 15, 2019, the Veteran's right calf disability was, at its worst, moderate. 2. For the period from October 15, 2019, the Veteran's right calf disability was, at its worst, moderately severe. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for service-connected right tibiailis anterior muscle damage (a right calf disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 1155, 4.55, 4.56, 4.73, Diagnostic Code 5312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1967 to September 1970, to include service in the Republic of Vietnam. The Veteran testified before a Veterans Law Judge (VLJ) at a May 2018 Board hearing. A transcript of that hearing is of record. The VLJ who conducted the hearing is no longer employed at the Board. In a May 2021 letter, the Veteran was notified that the VLJ who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101(c), he was offered an opportunity to testify at a hearing before a VLJ who could participate in making a final determination on his claims. The Veteran did not respond. As such, the Board finds that VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. The Veteran's claims were previously before the Board in August 2018. At that time, the Board determined that the Veteran should be afforded a new VA examination. The claims were also before the Bord in January 2021. At that time, the Board determined that the RO failed to provide a complete supplemental statement of the case (SSOC) following the August 2018 Board remand. As such, the Board remanded the claim. That development having been completed; the claims may be adjudicated by the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for service-connected right tibiailis anterior muscle damage (a right calf disability) The Veteran contends that he should be awarded higher ratings for his right calf disability. The Veteran's right calf disability was initially granted service connection in a March 2007 rating decision. The Veteran did not appeal this decision. On July 27, 2012, he submitted a claim for increased ratings, including his right calf disability. The Veteran's claim was denied again in a June 2013 rating decision, and he filed a notice of disagreement in June 2014. The Veteran perfected his appeal to the Board in a November 2014 Form 9. In a later September 2020 rating decision, the Veteran's right calf disability evaluation was increased from 10 percent to 20 percent, effective October 15, 2019. In consideration of the above, the Board will determine whether the Veteran's service-connected right calf disability should be rated in excess of 10 percent from July 27, 2011 through October 15, 2019, and in excess of 20 percent from October 15, 2019 to the present. The Veteran's disability has been rated under Diagnostic Code 5312 for both periods on appeal. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under Diagnostic Code 5312, impairment of the Group XII anterior muscles of the leg warrant ratings of 10, 20, and 30 percent when there is a moderate, moderately severe, or severe disability, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5312. The Veteran underwent a muscle VA examination in May 2013. The examiner found that the Veteran's muscle injury affected his muscle substance or function, with soft flabby muscles in the wound area, as well as a 3.0 by 2.0 centimeter area along the distal lateral right thigh muscle, with loss of muscle density compared to the left. The Veteran did not exhibit any cardinal signs or symptoms of a muscle disability. The Veteran's muscle strength was noted to be 5/5, or normal strength, for every muscle group. There was no muscle atrophy present. In a November 2014 correspondence, the Veteran reported that his right calf muscle disability should be rated at 20 percent. He explained that even though his strength had been rated at 5/5, he felt severe, more frequent, longer lasting cramping. He also reported that there was debridement on this wound during his long hospitalization in February 1970. The Veteran also reported that his VA examination in 2007 contained much more detail than his more recent 2013 VA examination. In 2013, the examiner added an addendum noting some cramping. The Veteran explained that this cramping had gotten more severe, longer lasting, and more frequent. There was no question that it interfered with his daily activities and energy levels. In response to the contention that his 2007 examination contained more information than his 2013 examination, the Board notes that unfortunately, the 2007 examination is not within either of the current appeal periods and is unavailable to the Board for review. In addition, the Board finds that the 2013 VA examination is adequate for appellate review, as the examiner was thorough and provided appropriate findings. In the Veteran's May 2018 Board hearing, he testified that he had missing muscle and weakness. In August 2018, the Board remanded the Veteran's claim in order to get a new VA examination. The Veteran attended a VA examination for his right calf disability in October 2019. The examiner determined that, since the condition onset, it had remained the same. The examiner determined that the Veteran did not have any muscle injuries which were affecting his muscle substance or function. The Veteran did not have any signs or symptoms attributable to muscle injuries, such as loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, or uncertainty of movement. His muscle strength testing was all normal for every muscle group, except his ankle plantar flexion, group XI, was rated 4/5 (less than normal strength). There was no muscle atrophy present. The Veteran was noted as using a cane for weakness of the lower extremities. Based on the foregoing evidence of record, the Board finds that higher evaluations are not warranted for either period on appeal. Prior to October 15, 2019, the evidence does not indicate that the Veteran's right calf disability was more than moderate. In his May 2013 VA examination, his muscle strength was normal, there was no muscle atrophy present, and the examiner did not indicate any other symptoms which would indicate that the Veteran's disability was moderately severe. The Board acknowledges the Veteran's lay statement submitted in November 2014 acknowledging that his muscle strength was 5/5, but nonetheless reporting that it was more severe. While the Board has considered this statement, it finds that the VA examination of record to be more probative with regard to the severity of the Veteran's medical disability. From October 15, 2019, the evidence similarly does not indicate that the Veteran's right calf disability was more than moderately severe. In his October 2019 VA examination, there were no signs or symptoms attributable to a muscle injury, and the Veteran's muscle strength was all normal, but for his ankle plantar flexion which was noted as less than normal strength. At the time of the examination, it was noted that the Veteran was using a cane to compensate for weakness of his lower extremities. Unfortunately, there has been no indication from the available evidence that the Veteran's condition is severe as of October 15, 2019. As such, the preponderance of the evidence weighs against finding that the Veteran should be awarded ratings in excess of 10 percent for the period prior to October 15, 2019, and in excess of 20 percent for the period from October 15, 2019 for his right calf disability. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.