Citation Nr: 22019060 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-56 263A DATE: March 31, 2022 ORDER Entitlement to an initial 10 percent rating, but no higher, for left calf muscle disability is granted. FINDING OF FACT Throughout the appeal period, the left calf muscle disability more nearly approximates a moderate injury to muscle group XI due to muscle atrophy, cardinal symptoms of pain and fatigue, and functional loss. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for left calf muscle disability have been met throughout the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.2, 4.7, 4.10, 4.56, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded this matter for additional development. 1. Entitlement to an initial compensable rating for left calf muscle disability Service connection for muscle of the left calf (claimed as lower extremity muscle condition to include atrophy of the left gastrocnemius muscle, secondary to left knee condition, with compensatory walking strategies) was established in the June 2016 rating decision that is the subject of this appeal and assigned a noncompensable (zero percent) rating, under Diagnostic Codes 5299-5311, effective October 5, 2015. The Veteran asserts that his left calf muscle disability warrants a higher rating. In April 2016 and August 2016, he submitted photographs of his left calf with a notation that the photographs show atrophy of the left leg muscle. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Muscle injuries are evaluated pursuant to the criteria at 38 C.F.R. §§ 4.55, 4.56 and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised, effective February 7, 2021, these diagnostic codes were not changed. The Veteran's left calf muscle disability has been rated noncompensable throughout the appeal period, under Diagnostic Code 5311. Diagnostic Code 5311 pertains to muscle group XI. The muscles in Muscle Group XI include the posterior and lateral crural muscles and muscles of the calf, including the triceps surae (gastrocnemius and soleus), tibialis, posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. The functions of these muscles are propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes and flexion of the knee. For VA rating purposes, the cardinal signs and symptoms of a 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). Under Diagnostic Code 5311, a slight muscle injury warrants a noncompensable rating; a moderate muscle injury warrants a 10 percent rating; a moderately severe muscle injury warrants a 20 percent rating; and a severe muscle injury warrants a maximum 30 percent rating. 38 C.F.R. § 4.56(d). A "slight" muscle disability is associated with the type of injury that is simple muscle wound without debridement or infection. History and complaint 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. The objective findings include 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" muscle disability is associated with the type of injury that is 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 of in-service treatment for the wound; 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 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). A "moderately severe" muscle disability is associated with the type of injury that is 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 intramuscular scarring. History and complaint include service treatment record or other evidence showing hospitalization for a prolonged period for treatment of wound; and record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A "severe" muscle disability is the type of injury that is 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. History and complaint include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than that shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (B) adhesion of 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 bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). When evaluating muscle injuries, open comminuted fracture with muscle or tendon damage will generally be rated as severe, and a through and through injury with muscle damage will be evaluated as no less than moderate. 38 C.F.R. § 4.56 (a), (b). In this case, the Veteran was not found to have an open comminuted fracture or through and through injury at any time, and these provisions do not apply. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaint of the injury, and objective findings. 38 C.F.R. § 4.56(d). The Court held that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006), citing Robertson v. Brown, 5 Vet. App. 70 (1993). Here, the Veteran's service treatment records do not show any injury to the left calf muscle. Rather, the muscle condition manifested after service as secondary to the Veteran's service-connected left knee disability. During a June 2016 VA examination, the Veteran reported a history of left knee anterior cruciate ligament (ACL) repair and medial meniscectomy in 2004 and 2007. He reported no history of penetrating or non-penetrating muscle injury. He reported that a VA examiner apprised him during a recent VA knee examination of atrophy of his left calf muscle secondary to surgery; that he had not noticed atrophy until that time; and that he had no functional limitations due to the condition. The examiner noted the Veteran has not been diagnosed with a muscle injury, and there was no injury to any other muscle group or additional conditions, including no history of injury to the fascial muscles. The examiner indicated there were no known facial defects or evidence of facial defects, the muscle injury did not affect muscle substance or function, and the Veteran did not have any cardinal signs or symptoms of muscle disability. Testing revealed normal muscle strength. The examiner indicated the Veteran had mild muscle atrophy of the left calf affecting muscle group XI that measured 41.5 centimeters on the atrophied (left) side and 42 centimeters on the sound (right) side, that did not affect the Veteran's ability to work or result in inability to keep up with work requirements. The examiner did not indicate whether the left calf muscle disability was slight, moderate, moderately severe or severe. In an August 2016 statement, a private clinician opined that the Veteran's left calf muscle injury was "severe" based on medical records and visible atrophy. She noted that the objective photographic evidence submitted by the Veteran clearly and visibly illustrated left gastrocnemius atrophy, even without measurements. The consultant did not provide measurements of the left calf or note any medical findings. Following the Board's March 2020 remand, the Veteran underwent a VA examination in March 2020. The examiner diagnosed left calf muscle atrophy (group XI) and indicated there was no history of penetrating muscle injury or non-penetrating muscle injury. The Veteran reported the condition began after he tore his left knee ACL with symptoms of constant pain in his left calf muscles. He reported current symptoms of constant, daily pain in his left leg with muscle atrophy, treated with over-the-counter pain medication as needed, and functional impairment due to pain and atrophy described as difficulty walking and climbing stairs at work. Examination showed no known facial defects or evidence of fascial defects or scar(s) associated with the muscle injury. Visible atrophy of the left calf measured 42 centimeters on the atrophied (left) side and 44 centimeters on the sound (right) side, which the examiner indicated affected muscle substance or function and was manifested by cardinal signs and symptoms of consistent fatigue-pain of the left side of muscle group XI. Muscle strength was noted as normal (5/5), and the Veteran was not noted to use an assistive device. The examiner indicated that the muscle injury functionally affects the Veteran's ability to work, in that tasks requiring running, kneeling, squatting, climbing and jumping would aggravate the condition due to pain. The examiner remarked that the muscle disability is mild based on the type of injury, history, complaint and objective findings. VA treatment records do not document any complaints, treatment or findings pertaining to the left calf muscle disability. After reviewing the evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the totality of evidence supports the assignment of a 10 percent rating, but no higher, for the left calf muscle disability throughout the appeal period, as the evidence more nearly approximates a "moderate" disability. This finding is based on objective evidence of atrophy of the left gastrocnemius muscle, noted as measuring 0.5 centimeter and 2.0 centimeters less mass than the right side by the June 2016 and March 2020 VA examiners, respectively. It is also based on the cardinal symptom of pain-fatigue and functional impairment caused by pain that aggravates the condition when completing tasks requiring running, kneeling, squatting, climbing and jumping, as reflected on the March 2020 VA examination report. As such, the Board finds that an initial 10 percent disability rating, but no higher, for the service-connected left calf muscle disability has been met throughout the appeal. 38 C.F.R. § 3.56, Diagnostic Code 5311. The Board finds that a rating higher than 10 percent is not warranted at any point during the appeal. The record does not reflect history of a wound to the left calf muscle, debridement or infection, or hospitalization. Rather, as noted by both VA examiners, the left calf muscle atrophy is secondary to the service-connected left knee. Additionally, the objective evidence, including both VA examination reports, shows no evidence of fascial defect, impaired tonus, or metallic fragments retained in muscle tissue, and no cardinal signs or symptoms of muscle disability, other than pain-fatigue, such as loss of power, lowered threshold of fatigue, weakness, impairment of coordination or uncertainty of movement. Testing during both VA examinations showed muscle strength was normal. While the March 2020 VA examiner noted the left calf muscle atrophy caused some functional impairment in work tasks, the June 2016 VA examiner found the disability had no functional effect on the Veteran's ability to work. Further, neither VA examiner indicated that that the Veteran was unable to keep up with work requirements nor indicate severe impairment of function. Although the June 2016 VA examiner noted three scars located on the left knee area, the Veteran's muscle disability is not due to a muscle injury and the March 2020 VA examiner found no objective evidence of scars associated with the left calf muscle disability. The Board acknowledges that the March 2020 VA examiner indicated the left calf muscle condition was mild. The Board also acknowledges that the June 2016 private clinician opined that the left calf muscle atrophy is "severe" under the rating schedule and as such warrants a 30 percent rating. However, the private clinician did not provide any measurements for the left calf muscle or document any clinical findings to support her opinion. Thus, the opinion is not afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weight against contrary opinions."). In sum, after resolving reasonable doubt in the Veteran's favor, the Board finds that an initial 10 percent rating, but no higher, for the left calf muscle disability is warranted throughout the appeal. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.