Citation Nr: 0001113 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-11 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating of more than 10 percent for a compartment syndrome of the right lower extremity. 2. Entitlement to an initial rating of more than 10 percent for a compartment syndrome of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1972 to August 1976 and from May 1978 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO), granting service connection for compartment syndromes of each of the lower extremities and assigning initial evaluations of 0 percent for each extremity. The veteran testified at a personal hearing before the RO's hearing officer in August 1998, and by the hearing officer's decision in December 1998 hearing officer's decision, the initial evaluations were increased to 10 percent for each leg. The veteran continues to disagree with the evaluations assigned. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the claim. 2. The veteran's compartment syndrome of the right leg is productive of not more than a moderate injury to Muscle Group XI. 3. The veteran's compartment syndrome of the left leg is productive of not more than a moderate injury to Muscle Group XI. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 10 percent for a compartment syndrome of the right leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.40-4.46, 4.59, 4.73, Diagnostic Code 5311 (1999). 2. The criteria for the assignment of an initial rating in excess of 10 percent for a compartment syndrome of the left leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.40-4.46, 4.59, 4.73, Diagnostic Code 5311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are before the Board on appeal of the original assignment of disability evaluations, and, as such, there are presented original claims contemplated by Fenderson v. West, 12 Vet. App. 119, 126 (1999) (at the time of an initial rating, separate or staged ratings may be assigned for separate periods of time based on the facts found) as opposed to claims for increased ratings. While it is apparent that the RO has not developed this issue in light of Fenderson, it is otherwise neither alleged nor shown that consideration of the merits of the claim presented would result in any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See 38 U.S.C.A. § 5107(a). Generally, an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased evaluation. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). The veteran's claims for initial evaluations in excess of 10 percent are, thus, "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, VA has a duty to assist the claimant in developing the facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts with respect to the matters at issue have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. As such, no further assistance to the veteran with the development of the evidence is required. The record reflects that the veteran filed his claim for service connection for a bilateral leg disability in September 1997, shortly after his separation from service. In October 1997, the veteran underwent a VA compensation and pension examination. From history provided by the veteran, it was noted that during service he had developed activity- related compartment syndrome in both legs, for which he had four operations, two on each leg, most recently in 1994. His symptoms reportedly began in 1989. His current complaints did not include numbness, although he noted that if he tried to do running or extended walking, he had anteromedial deep leg pain. If he avoided these activities, he was relatively symptom free. He indicated that he tended to walk on his heels and lateral aspects of his feet, as pushing off his toes with force caused tenderness. He continued to remain physically active with exercise, having learned how to modify his activities to accommodate his physical problems. On examination, the veteran's gait was symmetric and non- antalgic. He was able to heel and toe walk. In the seated position, he had light touch intact in all dermatomes of both lower extremities. He had 5/5 motor strength throughout both lower extremities. He did have scars consistent with a history of fasciotomy on both legs. He did not have atrophy of the calves. Nor did he have deformity or curling of the toes. He had 5/5 extensor hallucis longus (EHL) and extensor digitorum longus (EDL), ankle plantar and dorsiflexion, as well as posterior tibia and peroneal function in both legs. X-rays of both legs were negative except for some periosteal bone, which had been present on films in 1990 and was consistent with his surgical history. The diagnosis was bilateral compartment syndrome, status post four surgeries with no evidence of neurovascular damage on examination. The claims file contains outpatient treatment records from the William S. Middleton Memorial VA Medical Center where the veteran has sought treatment primarily for back pain. These records, dated from March 1998 to December 1998, do not contain significant information pertaining to the veteran's leg disability, other than that in March 1998 it was noted the veteran could ambulate without difficulty. A second VA examination was performed in September 1998. The veteran described his pain as beginning in 1990 due to extensive running he was performing for training for triathlons and for military exercises. An initial diagnosis of exercise-induced compartment syndrome was noted, for which he later had four fasciotomy procedures. Since the surgeries, he reported persistent pain and an inability to return to his baseline triathlete level of performance. Although he was no longer involved in running or military exercises, he reported significant pain at all times and an inability to push off with his toes, instead rolling off his heels and pushing off the lateral sides of his feet. Also noted to be present were constant, persistent pain in his posterior calf, which worsened with activity, as well as a dull achy pain in the right calf and a sharp area of pain to palpation over the lateral scar with intermittent shooting pains down the lateral side of the right leg. His typical day was to arise early in the morning, drive his son to the gym, return to the house, eat a normal breakfast, clean the house, and perform exercises in the afternoon, primarily rowing and other upper body exercises. On physical examination, the veteran had a 5-inch incision over the medial portion of the posterior compartment of the right leg. The incision was benign to palpation, without tingling or hypersensitivity. He had a long lateral incision over the anterior lateral right leg. Palpation over the proximal portion of it revealed an area of point tenderness at the site of a fascial defect. Deep palpation in the calf was mildly tender. He had excellent and symmetric calf bulk as well as anterior and lateral compartment musculature bulk. His left leg had similar incisional scars which were benign. There was mild tenderness to deep palpation of the posterior calf. The neurovascular examination revealed bilateral dorsalis pedis and posterior tibia pulses of 2+. Light touch sensation was intact through the bilateral lower extremities and bilateral tibialis, anterior and posterior tibialis, EHL, flexor hallucis longus (FHL) and peroneals were 5/5. The diagnosis was exercise-induced bilateral leg compartment syndromes, status post compartment releases on the right and compartment releases on the left followed by revision release, with current persistent pain in both legs. In his substantive appeal, the veteran stated that he was unable to perform the simple task of walking without experiencing excruciating pain and discomfort, especially in the left calf. Even when not walking, he noted a constant throbbing pain in the calves. At his personal hearing in August 1998, the veteran described the pain in his left leg as being deep and extreme, in the center of his calf, especially when walking. On the right leg, he also noted pain in the muscle of the calf, but not as intense as the left leg. He reported walking on the heels and sides of his feet because pushing off his toes caused intense pain. He did experienced swelling, other than prior to and immediately after his last operation. Running was discontinued because of pain. An inability to carry anything on his back was noted, although he reported being able to carry lightweight grocery bags with handles. Pain was noted after about 10 minutes of standing. Also, he noted that he was told that further surgery might not help the problem. Under the rating criteria for muscle injuries, the cardinal signs and symptoms are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56(c-d) (1999). For the purpose of the present case, the criteria of moderate and moderately severe are pertinent: (2) Moderate disability of muscles. (i) Type of injury. 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. (ii) History and complaint. Service department record 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 injury as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, 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 of fatigue when compared to the sound side. (3) Moderately severe disability of muscles. (i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. 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 as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of 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. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. The disabilities in question have been rated analogously by the RO in terms of a muscle injury affecting Muscle Group XI, pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5311, which include the posterior and lateral crural muscles and muscles of the calf. These muscles have the following functions: Propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. A moderate muscle injury under such code is assigned a 10 percent evaluation, and a moderately severe muscle injury is assigned a 20 percent evaluation. Id. The evidence presented fails to shown that this is a case where, upon initial rating of the disorders in question, separate ratings are assignable for different periods of time dating to the effective dates of the grants of service connection. See Fenderson, supra. There has been no showing of periods of time in which a greater degree of severity of the compartment syndromes was present and, as such, varied ratings are not for assignment in this instance. Medical data presented as to each lower extremity identify not more than a moderate injury involving Muscle Group XI, there being no showing of those indications of the presence of a moderately severe or severe muscle injury to either leg. Absent from the record are indications of loss of the deep fascia or muscle substance, loss of normal firm resistance, or positive evidence of a diminution in strength or endurance, as indicative of a muscle injury of moderately severe proportions. Although there is shown to be a singular fascial defect on the right, in general the veteran had exhibited excellent and symmetric calf bulk and musculature. He does have pain in both calves, particularly with activity, that is comparable to the level of disability set forth in the criteria for a moderate muscle injury, but the level of pain or other impairment of either lower extremity is not demonstrated to a level in excess of a moderate muscle affecting both legs. Thus, initial ratings of more than 10 percent are not shown to be in order. Although scar tenderness constitutes a separate disability, which may warrant a separate rating, see Esteban v. Brown, 6 Vet. App. 259, 261 (1994), in this case the veteran's scars are noncompensable. Under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999), a 10 percent evaluation is granted for superficial scars that are tender and painful on objective demonstration. Superficial scars that are poorly nourished with repeated ulceration are 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803 (1999). Scars, as applicable here, are otherwise rated on the basis of limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999). In this instance, the medical evidence presented shows that the veteran's scars are benign to palpation on objective examination and without pain, poor nourishment, ulceration, or otherwise associated with a limitation of function. Ratings in excess of 10 percent are not found be assignable on the basis of pain or functional loss or by virtue of painful motion due to arthritis. See 38 C.F.R. §§ 4.40, 4.41, 4.59 (1999). Arthritic involvement is not objectively shown and while pain appears to be the primary manifestation of the disabilities in question, the level of pain shown to be present is found to be contemplated by the rating assigned for moderate injuries to Muscle Group Xl. See 38 C.F.R. § 4.56(c). Also lacking is any probative evidence that the disabilities at issue are productive of a marked interference with employment or that they necessitate frequent periods of hospital care, such that it may reasonably be concluded that assignment of higher ratings is warranted on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (1999). The doctrine of reasonable doubt is not found to be for application in this case, as a preponderance of the evidence is against the assignment of ratings in excess of 10 percent for the entities at issue. 38 U.S.C.A. § 5107(b). ORDER An initial rating in excess of 10 percent for a compartment syndrome of the right lower extremity is denied. An initial rating of more than 10 percent for a compartment syndrome of the left lower extremity is denied. BRIAN J. MILMOE Acting Member, Board of Veterans' Appeals