Citation Nr: 0947337 Decision Date: 12/14/09 Archive Date: 12/24/09 DOCKET NO. 05-14 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, TX THE ISSUES 1. Entitlement to an initial compensable rating for bilateral shin splints. 2. Entitlement to a rating in excess of 10 percent for bilateral shin splints beginning January16, 2009. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from June 2003 to May 2004. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas, which, in pertinent part, granted service connection for bilateral shin splints with an initial noncompensable rating. In September 2007 the Board remanded the issues of service connection for bipolar disorder, right and left foot hallux valgus, and an initial compensable rating for bilateral shin splints. Service connection for bipolar disorder and right and left hallux valugus was granted in a September 2009 rating decision and those issues are no longer on appeal. The September 2009 rating decision also granted an increased rating of 10 percent disabling for bilateral shin splints effective January 16, 2009. As the 10 percent evaluation does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn her claim, the issues concerning entitlement to an increased rating for bilateral shin splints remains pending. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The medical evidence prior to January 16, 2009 shows that the service connected bilateral shin splints were manifested by no more than slight disability in muscle group XII, no joint involvement or limitation of motion associated with shin splints, and no impairment of the tibia and fibula with malunion and slight knee or ankle disability. 2. The medical evidence beginning January 16, 2009 shows that the service-connected bilateral shin splints were manifested by painful motion. 3. At no time during the appeal period has the medical evidence revealed more than slight disability in muscle group XII, no impairment of the tibia or fibula with malunion and slight knee or ankle disability, and no compensable limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 0 percent for bilateral shin splints prior to January 16, 2009 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.20, 4.27, 4.31, 4.71a, Diagnostic Codes 5003, 5022, 38 C.F.R. § 4.73, Diagnostic Code 5312 (2009). 2. The criteria for an evaluation in excess of 10 percent for bilateral shin splints beginning January 16, 2009 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.20, 4.27, 4.31, 4.71a, Diagnostic Codes 5003, 5022, 38 C.F.R. § 4.73, Diagnostic Code 5312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The present case involves a "downstream" issue, as the initial claim for service connection for bilateral shin splints was granted in the May 2004 rating decision appealed, and the current appeal arises from her disagreement with the evaluation originally assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Thus, as the Veteran's claim for an increased initial disability rating was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service medical records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of her disability. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as 'staged' ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The RO granted service connection for bilateral shin splints in May 2004, assigning a 0 percent rating effective May 5, 2004. The Veteran appealed this action. She asserts that her shin splints are so painful she is no longer able to run and prolonged walking causes pain. Where VA's Rating Schedule does not list a specific disability, the disability is rated under criteria where the functions affected, anatomical localization, and symptomatology are analogous. 38 C.F.R. § 4.20. Here, the Veteran's bilateral shin splints are rated as analogous to an injury of muscle group XII under 38 C.F.R. § 4.73, Diagnostic Code (DC) 5312; periostitis under 38 C.F.R. § 4.71a, DC 5022, which is rated on the basis of limitation of motion of the affected part as degenerative arthritis; and disorders of the tibia and fibula under 38 C.F.R. § 4.71a DC 5262. Muscle group XII affects dorsiflexion, extension of the toes, and stabilization of the arch and involves the anterior muscles of the leg. 38 C.F.R. § 4.73, DC 5312. A slight disability of muscle group XII warrants a noncompensable evaluation. A moderate disability warrants a 10 percent rating, and moderately severe disability warrants a 20 percent rating. Id. In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Diagnostic Code 5022 contemplates periostitis, which is rated on the basis of limitation of motion of the affected parts as degenerative arthritis, under Diagnostic Code 5003. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5262 addresses disorders of the tibia and fibula. Under that code, where there is impairment of the tibia and fibula with malunion and with slight knee or ankle disability, a 10 percent rating is warranted. With malunion and with moderate knee or ankle disability, a 20 percent rating is assigned but with marked knee or ankle disability a 30 percent rating is assigned. When manifested by nonunion with loose motion, requiring a brace, a 40 percent rating is assigned. See 38 C.F.R. § 4.114, Diagnostic Code 5262. Service treatment records show that the Veteran had multiple complaints of shin splints in service. An April 2004 VA pre-discharge examination report diagnosed the Veteran with bilateral shin splints with residuals. The Veteran reported her legs hurt when she walked or stood a lot but she used to be a runner and never had trouble with it. She reported discomfort with palpation to the shins. As the April 2004 VA examination did not report the range of motion for bilateral lower extremity periostitis or whether the impairment of tibia or fibula were contemplated, the claim was remanded for an additional VA examination in the September 2007 Board decision. At a January 2009 VA examination report the Veteran complained of pain with stiffness and early fatigue in the bilateral lower extremities. She reported her stamina had also diminished due to fatigue and pain. The Veteran also reported moderately severe daily flare ups preceded by prolonged standing and sitting. She reported no incapacitating episodes. The Veteran reported significant pain of a 7-8 out of 10 which was more frequent in the right anterior tibial border than the left. The examiner noted there was no joint range of motion applicable for shin splints. The Veteran presented with a guarded gait. In response to a joint evaluation for the knees and ankles the Veteran reported right knee pain due to chronic bilateral hallux valgus. She described no symptoms of inflammatory arthritis. No edema or effusion or warmth was noted. The Veteran had normal knee and ankle range of motion and was diagnosed with right knee patellofemoral pain syndrome, mild to moderate. The Veteran was diagnosed with chronic bilateral hallux valgus and periostitis with right knee pain which affected her continued standing, sitting and driving. Joint motion direct assistance was not causing any increased fatigue or incoordination. The Veteran did need rest breaks with flare-ups and repeated use however there were no functionally incapacitating episodes. Prior to the January 16, 2009 examination, the medical evidence shows no more than a slight disability in muscle group XII, no joint involvement or limitation of motion associated with the shin splints, and no impairment of the tibia and fibula with malunion and a slight knee or ankle disability. Therefore, the criteria for a compensable rating is not met and a rating higher than 0 percent is not warranted under 38 C.F.R. § 4.73, DC 5312, 38 C.F.R. § 4.71a, DC 5022 or 38 C.F.R. § 4.71a, DC 5262 prior to January 16, 2009. The January 16, 2009 VA examination report shows no more than a slight disability in muscle group XII and no impairment of the tibia and fibula with malunion and a slight knee or ankle disability. Therefore, the criteria for a compensable rating is not met and a rating higher than 0 percent is not warranted under 38 C.F.R. § 4.73, DC 5312, or 38 C.F.R. § 4.71a, DC 5262. However some limitation of motion was confirmed by evidence of painful motion as noted in the January 2009 VA examination of bilateral shin splint pain warranting a 10 percent evaluation but as there is no x-ray evidence of degenerative arthritis of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a higher 20 percent evaluation under DC 5003 is not warranted. Application of a higher disability evaluation based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 also does not apply based on the medical evidence of record. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has complaints of pain to palpation but no additional limitation of function due to pain, fatigue, weakness, or lack of endurance on physical evaluation. The Veteran's shin splint disabilities are properly evaluated as 10 percent disabling. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The assignment of different evaluations throughout the pendency of the Veteran's appeal has been considered. However, the evidence does not support staged evaluations other than those already assigned in the present case. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The evidence more closely approximates the criteria for a 0 percent rating for bilateral shin splints prior to January 16, 2009 and a 10 percent rating for bilateral shin splints beginning January 16, 2009. The preponderance of the evidence is against the increased rating claims and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. At 57-58. ORDER Entitlement to an initial compensable rating for bilateral shin splints is denied. Entitlement to a rating in excess of 10 percent for bilateral shin splints beginning January16, 2009 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs