Citation Nr: 24010703 Decision Date: 03/06/24 Archive Date: 03/06/24 DOCKET NO. 18-19 094 DATE: March 6, 2024 ORDER From October 28, 2010, a rating of 20 percent, but no higher, for right calf strain is granted. From October 28, 2010, a rating of 20 percent, but no higher, for left calf strain is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From October 28, 2010, the Veteran's right calf disability was manifested by a moderately severe muscle injury, but not by a severe muscle injury. 2. From October 28, 2010, the Veteran's left calf disability was manifested by a moderately severe muscle injury, but not by a severe muscle injury. CONCLUSIONS OF LAW 1. From October 28, 2010, the criteria for an evaluation of 20 percent, but no higher, for right calf muscle strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.73, Diagnostic Code 5311. 2. From October 28, 2010, the criteria for an evaluation of 20 percent, but no higher, for left calf muscle strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1979 to June 1983 and from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 and January 2024 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2023 the Board remanded the claims for additional development. The Board notes the September 2014 rating decision was issued following the Veteran's submission of an August 2013 letter requesting "reconsideration" of an August 2012 rating decision. The August 2013 letter was filed within the appeal period following an August 2012 rating decision. In this scenario, VA is required to address whether the increased rating claim constitutes new and material evidence relating back to the previous decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In August 2013, the Veteran described how his calf conditions impacted his employment. This statement constitutes new and material evidence that relates back to the August 2012 rating decision which granted service connection for bilateral calf disabilities. Thus, the issues now on appeal are entitlement to increased initial ratings for right and left calf disabilities. Increased Rating 1. Entitlement to an increased initial disability rating in excess of 10 percent for right calf strain 2. Entitlement to an increased initial disability rating in excess of 10 percent for left calf strain Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Over the entire appeal period, the Veteran is in receipt of a 10 percent ratings for right and left calf strain. These conditions are rated under DC 5311. Diagnostic Code 5311 applies to Muscle Group XI (Function: Propulsion, plantar flexion of foot (1); stabilization of arch (2, 3); flexion of toes (4, 5); Flexion of knee (6). Posterior and lateral crural muscles, and muscles of the calf: (1) Triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris). 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, DC 5311. Effective February 7, 2021, the regulations pertaining to the musculoskeletal system were revised. However, no revisions were made to DC 5311 or to other regulations applicable to evaluating the Veteran's right and left calf strain disabilities. The severity of a 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. On October 28, 2010, the Veteran notified VA that he intended to file a claim seeking compensation benefits. In January 2011, he filed a claim seeking entitlement to service connection for a bilateral leg disability and reported ongoing muscle spasms in his claves. A VA general medical examination was provided in May 2011. At that time, the Veteran reported bilateral calf muscle spasms. The Veteran's symptoms worsened with walking or standing for more than 10 minutes. His condition flared once or twice each month. He had difficulty standing in the shower. If his claves cramped at work, he needed to get up and walk it off. He missed work due to calf muscle cramps. The examiner noted no muscle destruction, no tumors, no entry or exit wounds, no scars, no adhesions, no tendon damages, no bone, joint or nerve damage. Full muscle strength was observed. The Veteran was able to "go up and down on his toes 5 time, but with right-sided calf pain." The right calf was tender, but the left calf was non-tender. No swelling, increased warmth, or cords were observed. In an August 2013 letter, the Veteran reported pain in both calves. The pain was onset several times each month. The Veteran had turned down employment in law enforcement over the past several years because he was unable to spend time on his feet. He continued to work at a "desk job" and believed his employment options were limited due to his right and left calf disabilities. A VA muscle injuries examination was provided in July 2014. The examiner diagnosed chronic bilateral calf strain. The Veteran reported periods of tingling and numbness in both legs with each episode lasting one to three days. The examiner confirmed Muscle Group XI (muscles of the foot, ankle, and calf) was affected in both legs. Bilateral calf pain affected muscle substance or function. There were no scars or fascial defects associated with the muscle injuries. Cardinal signs and symptoms of loss of power, weakness, and lowered threshold of fatigue were observed in both legs. The Veteran had full muscle strength and no muscle atrophy. He occasionally used a cane. The examiner observed the Veteran's muscle injuries impacted his ability to work because he experienced calf pain with walking or sitting for long periods, including while driving. In August 2014, the Veteran submitted a Virginia Department of Motor Vehicles Certification of Disability form. The form was completed by a physician, and it confirmed a permanent impairment which limited the Veteran's ability to walk more than 200 feet without stopping to rest and his inability to walk without assistance, including the use of a brace or cane. In August 2015, the Veteran submitted a statement describing current pain symptoms, including pain which limited his ability to work. Driving and sitting were painful and, at times, he used a cane. In April 2018, he submitted a statement reporting worsening pain with difficulty, standing, walking, and driving. In February 2020, the Veteran submitted a statement asserting he was no longer able to drive long distances, stand for long periods, or walk more than 30 feet without additional pain. He reported difficulty with stairs noting he had recently fallen down the stairs when his legs gave way. In June 2023, an additional VA muscle injuries examination was provided. The examiner diagnosed right and left calf strain and confirmed a non-penetrating muscle injury with daily pain. The examiner found no scars, no fascial defects, and no effect on muscle substance or function. There were no signs and symptoms of muscle disability, including loss of power, weakness, and lowered threshold of fatigue. Full muscle strength and no muscle atrophy were observed. The Veteran did not use any assistive devices. However, the examiner stated the calf muscle disabilities impacted the Veteran's ability to work as he missed work due to calf pain. VA treatment records include additional reports of calf muscle symptoms. In January 2016 the Veteran described recurrent calf muscle spasms with pain at rest and with walking or standing and a VA clinician noted calf muscle tenderness. In June 2019, the Veteran reported continuing calf pain. In May 2023, a functional assessment noted calf pain limited the Veteran's ability to walk more than short distances, but it did not prevent his use of stairs. Resolving reasonable doubt in favor of the Veteran, the Board finds moderately severe muscle disabilities of the right and left calf are shown over the entire appeal period (from October 28, 2010). The Veteran has consistently reported calf pain which limits his ability to walk, sit, stand, and drive. In May 2011, a VA examiner noted bilateral calf muscle spasms which, at times, caused the Veteran to miss work. The July 2014 examiner noted cardinal signs or symptoms of loss of power, weakness, and lowered threshold of fatigue. He confirmed the calf disabilities impacted the Veteran's ability to work. While the June 2023 examiner did not find any cardinal signs or symptoms present, he found daily calf pain interfered with the Veteran's ability to work. Accordingly, the Board finds, the Veteran's calf muscle strength and endurance are impaired over the entire appeal period. This impairment impacted his ability to keep up with work requirements. The Veteran's right and left calf conditions most nearly approximate moderately severe muscle disabilities. From October 28, 2010, 20 percent ratings for the right calf disability and for the left calf disability are warranted. 38 C.F.R. § 4.56(d)(3), 4.73, DC 5311. Over the entire appeal period there is no evidence the right or left calf muscle strain is manifested by ragged, depressed, and adherent scars; loss of deep fascia or muscle substance; or the presence of soft flabby muscles in the wound area. There is no evidence the right or left calf muscles swell and harden abnormally in contraction. While the Veteran is limited in his ability to walk, stand, sit, and drive, he continues to perform these activities. Accordingly, there is no evidence of severe impairment of function. Severe muscle disability of the right or left calf is not shown. A rating in excess of 20 percent is not warranted. Id. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In May 2023, the Board found the issue of entitlement to a TDIU was raised by the record as part and parcel of the claims for increased right and left calf muscle disability ratings. The issue was remanded for additional development. In November 2023, the Agency of Original Jurisdiction asked the Veteran to complete and return a TDIU claim form. To date, the Veteran has not submitted this form. Currently the evidence of record does not include information as to the Veteran's employment and education history. The Board is unable to determine whether a TDIU is warranted. The claim must be remanded to provide the Veteran with an additional opportunity to complete and submit a TDIU claim form. The Veteran is advised the duty to assist is not a one-way street and failure to cooperate with the necessary development efforts to facilitate an informed decision on his TDIU claim may result in a denial of such benefit due to the current inconsistency in the record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: Contact the Veteran and request that he complete and submit a TDIU claim form. Continue appropriate development and adjudication as to entitlement to a TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.