Citation Nr: 22017625 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 11-21 053 DATE: March 25, 2022 ORDER Entitlement to an initial compensable disability rating prior to April 2, 2021, for right Achilles' tendon tear is denied. Entitlement to a disability rating in excess of 10 percent after April 2, 2021, for right Achilles' tendon tear is denied. Entitlement to an initial compensable disability rating for left hamstring tear is denied. FINDINGS OF FACT 1. Prior to April 2, 2021, the Veteran's right Achilles' tendon tear manifested with slight muscle injury. 2. After April 2, 2021, the Veteran's right Achilles' tendon tear manifested with moderate muscle injury. 3. The Veteran's left hamstring tear manifested with slight muscle injury. CONCLUSIONS OF LAW 1. Prior to April 2, 2021, the criteria for an initial compensable disability rating for right Achilles' tendon tear have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.56, 4.73, Diagnostic Code 5311. 2. After April 2, 2021, the criteria for a disability rating in excess of 10 percent for right Achilles' tendon tear have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.56, 4.73, Diagnostic Code 5311. 3. The criteria for an initial compensable disability rating for left hamstring tear have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.56, 4.73, Diagnostic Code 5313. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to January 2006. The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in June 2014. A transcript of that hearing is of record. In August 2021 correspondence, the Board informed the Veteran that the presiding VLJ was no longer with the Board and the Veteran was offered an opportunity for a new hearing. The Veteran was asked to respond within 30 days, or the Board would assume he would not like a new hearing. No response has been received to date, so the Board will proceed with consideration of the Veteran's claims. The Board note that only issues on appeal currently are the disability ratings for the right Achilles' tendon tear and the left hamstring tear. The Veteran has multiple other lower extremity disabilities that are subject to compensation, to include bilateral radiculopathy and degenerative joint disease of the bilateral ankles, which are not before the Board currently. Examination adequacy In a statement received in June 2021, the Veteran questioned the adequacy of the May 2021 VA examination, noting that the examination only took 10 minutes, the examiner only measured his ankles, and the Veteran claimed the examiner never looked at the Veteran's hamstrings. The examiner did tell the Veteran that he had already reviewed the treatment records. The Veteran stated that the examiner should have undertaken physical examinations for each issue. The Veteran also alleged he had inflammatory arthritis due to service, although he did not allege that this was due to the disabilities currently before the Board. Review of the private treatment records submitted along with the Veteran's June 2021 statement from Dr. J.C.R. note inflammatory arthritis of the left knee and elbow, not the thigh, where the hamstring is. Therefore, while the Veteran may have inflammatory arthritis, there are no arguments or statements that this issue is related to the disabilities before the Board currently. The Board has considered the Veteran's statement that only a short period of time was spent with the Veteran and the Veteran did not believe an adequate physical examination of the hamstring occurred. The examiner, a Doctor of Occupational Medicine, reported the Veteran's lay statements and considered the medical evidence specific to the Veteran when evaluating the Veteran's hamstring. While the Veteran believes that the examiner did not perform a physical examination of the left hamstring and that such was necessary, the examiner, either through observation or review of the medical evidence already of record, was able to provide the relevant information (noted below). See Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008). The examination reports reflect the criteria set forth in VA regulations governing disability ratings and there is nothing on review of this document that suggests and any failure to provide the necessary information. Accordingly, the Board finds that VA's duty to assist with respect to obtaining adequate VA examinations have been met. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate 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). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Muscle Injury Right Achilles' tendon tear The Veteran's right Achilles' tendon disability is rated under Diagnostic Code 5313, effective February 1, 2006. The disability is evaluated as noncompensable prior to April 2, 2021, and at 10 percent thereafter. Under Diagnostic Code 5311, a slight muscle injury is assigned a 0 percent rating, a 10 percent rating is assigned for a moderate muscle disability, a 20 percent rating is assigned for a moderately severe muscle disability, and the maximum disability rating of 30 percent is warranted if there is severe muscle disability. 38 C.F.R. §§ 4.55(b), 4.56(d)(2), 4.73, Diagnostic Code 5311. The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56. 38 C.F.R. § 4.56 states that for an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). For a through-and-through injury with muscle damage shall be evaluated 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, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: A muscular disability is considered to be slight if it is a simple wound of muscle without debridement or infection. The history of a slight muscle injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability defined as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. The objective evidence of a slight muscle disability includes minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). A moderate muscular disability consists of 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 history of a moderate muscle injury should include service department records or other evidence of in-service treatment for the wound and a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability as defined above, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective evidence of a moderate muscle disability includes 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). A moderately severe muscular disability consists of a through-and-through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The history of a moderately severe muscle injury should include service department records or other evidence showing hospitalization for a prolonged period for treatment of the wound; consistent complaints of the cardinal signs and symptoms of muscle disability as noted above; and if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups; the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and impairment of strength and endurance in comparison to the sound side. 38 C.F.R. § 4.56(d)(3). A severe muscular disability consists of through-and-through, or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Furthermore, objective findings of a severe muscular disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (1) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. Turning to the evidence of record, the Veteran had a right Achilles' tendon tear in the early 1990s, due to a football injury. MRI was undertaken and he was placed in a cast for approximately a year. A VA examination conducted in November 2008 shows grade of muscle strength to be a 5 (normal function), the right Achilles' tendon showed mild tenderness to palpation without atrophy spasm or other muscle abnormalities. The Veteran indicated to the examiner during the examination that he was not currently using any treatments and the condition was stable. The Veteran did not use an assistive device. Private records from Dr. E.G.D. dated in February 2014 noted right tendo calcaneus with tenderness over the right tendo calcaneus and the Veteran had trouble reaching neutral position to the foot, as well as the inner aspect of the ankle. The Veteran had positive direct compression to Tinel's testing and trace weakness to dorsiflexion, as well as plantar. Muscle strength was normal (5). A note from the same doctor dated in March 2012 noted pain and tightness with a thickening of approximately 2.5 cm proximal to the posterior calcaneal tubercle. An October 2019 X-ray of the foot demonstrated no significant abnormality in the region of the Achilles tendon and the plantar fascia. There was no calcaneal spur. A January 2020 VA examination showed injury to muscle group XI, right, with no other symptoms. The examiner noted treatment with naproxen, cycling, stretching, electrical shocks, and inserts in the shoes. Symptoms were right-side pain on back of the heel, tendinitis, limited range of motion, weakness, and swelling. Objective examination was normal, and the Veteran did not use an assistive device. The May 2021 VA examination report (examination occurred April 2, 2021) found injury to group XI muscles on the right side: muscles of the foot, ankle and calf: gastrocnemius, soleus, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus. There was occasional fatigue and/or pain, but not lowered threshold of fatigue. Muscle strength was normal (5/5) in all areas. The Veteran did not use an assistive device. The Veteran's right Achilles' tendon disability caused difficulty walking over 100 yards during a work event. The examiner described the disability as moderate. Prior to April 2, 2021, the Board finds that a compensable disability rating is not warranted under Diagnostic Code 5311. Although the Board notes the Veteran's pain on back of the heel, tendinitis, limited range of motion, weakness, and swelling, no VA examiner has reported that the Veteran had scars, some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue, objective findings necessary for a moderate muscle disability. Objective findings revealed muscle strength of 5/5 and there were no signs of muscle atrophy. The Veteran did not use any assistive devices for ambulation, and the disability did not affect his ability to work. The Board notes that there are no objective findings contrary to the VA examinations with regard to whether the Veteran is entitled to a compensable disability rating under Diagnostic Code 5311 prior to April 2, 2021. As such, the Board finds that based on the evidence of record, the Veteran's right side muscle disability more nearly approximates "slight" severity under Diagnostic Code 5311, and an increased disability rating is therefore not warranted under Diagnostic Code 5311 prior to April 2, 2021. After April 2, 2021, the Veteran is in receipt of a 10 percent disability rating. To warrant a rating in excess of 10 percent, the Veteran must have a moderately severe muscle disability. The Board finds that the evidence does not support such a finding. Upon examination, the Veteran's muscle strength was 5/5. The examiner found no muscle atrophy and noted no other pertinent physical findings, complications, conditions, signs and/or symptoms on objective examination. The examiner stated that it was a normal muscle examination with good strength and tone, and no atrophy or deformity. There was no loss of deep fascia, muscle substance, normal firm resistance of muscles compared with the sound side, or impairment of strength and endurance in comparison to the sound side. The findings from the May 2021 VA examination report indicate no muscle weakness or atrophy and no other limitations or symptoms associated with the Veteran's right Achilles' tendon disability. Accordingly, a rating in excess of 10 percent is not warranted. The Board acknowledges the lay statements of the Veteran and others regarding his disabilities, to include that the Veteran experiences pain, but note that these statements do not appear to distinguish between his right Achilles' tendon disability and the Veteran's other disabilities. Here, the most probative evidence of record persuasively weighs against the claim of entitlement to a higher disability rating for either period. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and a higher rating for either period is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Left hamstring tear The Veteran's left hamstring tear is rated under Diagnostic Code 5313 since February 1, 2006. The Veteran's left hamstring tear is evaluated as noncompensable throughout the appeal period. Under Diagnostic Code 5313, a slight muscle injury is assigned a 0 percent rating, 10 percent rating is assigned for a moderate muscle disability, a 30 percent rating is assigned for a moderately severe muscle disability, and the maximum disability rating of 40 percent is warranted if there is severe muscle disability. 38 C.F.R. §§ 4.55(b), 4.56(d)(2), 4.73, Diagnostic Code 5313. As noted above, the severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56 and also applies to the left hamstring tear. Turning to the evidence of record, the Veteran had a hamstring tendon tear in 2001, with recurrence in 2003. He was put on light duty. A VA examination conducted in November 2008 indicates grade of muscle strength to be a 5, without atrophy, spasm and other muscle abnormalities. The examiner indicated that there are no current treatments being used, and the condition was stable. The February 2010 VA examination noted that the Veteran had treatment of exercise and stretching. The disability was stable and treated with Motrin 3-5 days a week. The examiner stated that it was difficult to test the Veteran's muscle strength, as the Veteran said it was too painful to full resist the examiner's pressure. Strength was 4 and the Veteran had muscle palpable tender mass 7 centimeters by 3 centimeters. The examiner found no significant effects, with mild effect on chores, shopping, and recreation, and moderate effect with exercise and sports. An October 2018 VA neurology note indicated that the Veteran had hamstring spasms and he reported that his hamstring would suddenly "lock up" on him with exercise or sometimes spasm just while walking or sitting. A specialist told him he could no longer run. A December 2018 MRI showed mild fatty infiltration of the semimembranosus muscle with slightly increased signal on the T2-weighted images. A March 2019 VA primary care note reported intermittent hamstring discomfort. A January 2020 VA examination showed left hamstring tightness, knotting, tenderness, pain in back of the thigh when walking and bending. The examiner noted treatment with ibuprofen, elastic bands, and strengthening exercises. Objective examination was normal. The May 2021 VA examination found injury to group XII muscles on the left side: posterior thigh/hamstring muscles: biceps femoris, semimembranosus, semitendinosus with function flexion of knee. The Veteran had occasional fatigue and/or pain, but not lowered threshold of fatigue. The Veteran had difficulty walking, bending, squatting, and difficulty walking over 100 yards during a work event. The examiner described the disability as slight. Muscle strength was normal, he did not use any assistive device, and was otherwise normal. The Board finds that a compensable disability rating is not warranted under Diagnostic Code 5313. Although the Board notes that the Veteran has spasms, "locking up," discomfort, tightness, knotting, tenderness, pain in back of the thigh when walking and bending, difficulty walking, bending, squatting, and difficulty walking over 100 yards during a work, no VA examiner reported that the Veteran had scars, some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue, objective findings required for a moderate disability. Further, muscle strength was 5/5 almost universally, with on note of 4/5, but this appears to have been an isolated finding, and with no signs of muscle atrophy. The Veteran did not use any assistive devices for ambulation. The Board notes that there are no objective findings contrary to the VA examinations with regard to whether the Veteran is entitled to a compensable disability rating under Diagnostic Code 5313. As such, the Board finds that based on the evidence of record, the Veteran's left hamstring disability more nearly approximates "slight" severity under Diagnostic Code 5313, and an increased disability rating is therefore not warranted under Diagnostic Code 5313. The Board acknowledges the lay statements of the Veteran and others regarding his disabilities, to include that the Veteran experiences pain, but note that these statements do not appear to distinguish between his left hamstring disability and the Veteran's other disabilities. (Continued on next page) Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a higher disability rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply, and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.