Citation Nr: 1216645 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-23 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of bilateral shin splints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Regional Office (RO) in Waco, Texas that denied entitlement to service connection for residuals of bilateral shin splints. In February 2012, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. At the time of this hearing, the Veteran indicated that there were outstanding VA medical records to be added to the claims file. These records were added to the claims file following the hearing, accompanied by a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2011). FINDINGS OF FACT The evidence does not show that the Veteran has shin splints related to military service. CONCLUSION OF LAW The criteria for service connection for shin splints have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in May 2008 that provided information as to what evidence was required to substantiate his claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, personnel records, and post-service reports of VA treatment and examination. Moreover, his statements in support of the claims are of record, including testimony provided at a February 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the Veteran's representative and the undersigned Veterans Law Judge confirmed the issue on appeal, entitlement to service connection for residuals of bilateral shin splints. The Veterans Law Judge explained to the Veteran what was needed to substantiate his service connection claim, and informed the Veteran that his claim had been denied based upon the fact that the evidence failed to show a current disability. He suggested that, in order to prevail on his claim, evidence of a current diagnosis of bilateral shin splints should be submitted. In fact, when the Veteran and his representative noted that there were likely relevant treatment records that were not part of the record, the Veterans Law Judge reviewed the claims file and suggested that they coordinate with the RO to obtain any missing medical records and add them to the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. Indeed, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In this case, the evidence reflects that the Veteran was diagnosed with bilateral shin splints in service. Service treatment records show that the Veteran was evaluated by a Physical Evaluation Board (PEB) in July 2005. He had bilateral lower extremity pain without any specific trauma or injury. Radiographs and bone scans revealed stress reactions compatible with shin splints and a left tibial change consistent with shin splints. The PEB found that the Veteran had incurred bilateral shin splints and the left tibia stress fracture in June 2003, that the disorders had not been present prior to active duty, and that they were permanently aggravated by active duty. The PEB concluded that the Veteran's bilateral shin splints prevented him from performing the duties of his grade and specialty. A June 2005 Medical Board Summary shows that the Veteran had chronic atraumatic bilateral lower extremity pain since June 2003, shortly after beginning basic training. Despite extensive conservative care to include physical therapy, nonsteroidal anti-inflammatory drugs (NSAIDS), and rest, the Veteran continued to have pain with increased activity. He felt that he could no longer perform his duties as a result of this pain. The Veteran was examined and X-rays and bone scans were performed, which revealed mild to moderately severe bilateral shin splints and a left tibia stress fracture. The Veteran failed to meet retention orthopedic condition criteria and he was discharged in September 2005. The above evidence is not in dispute, and shows that the Veteran was not only diagnosed with shin splints while on active duty, but was discharged pursuant to a Medical Board finding that his shin splints prevented him from performing his duties. As such, the element of an in-service diagnosis of shin splints has been met. The issue in this case is whether the evidence of record reflects a current disability. The Board notes that a current disability must be present for any service connection claim to prevail. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). In this case, April 2008 VA medical records reflect that the Veteran sought an evaluation of shin splints, which he reported began on active duty. He indicated that he had daily pain from the lower patellar region to his feet, and that he felt weakness in his legs, as if he were going to fall. The examiner noted a history of bilateral lower extremity stress fractures and ordered X-rays, which revealed a normal appearance of the tibia and fibula, bilaterally. At an April 2009 VA bones and joints examination, the Veteran stated that he had pain in both legs. However, a bone scan of his lower legs did not show any bony abnormalities or evidence of overt fracture or stress fracture. X-rays revealed normal architecture of bone with no unusual soft tissue changes of foreign bodies. The tibia and fibula had a normal appearance, bilaterally. The examiner noted that shin splints were not found at the time of the examination, based upon the negative bone scan. In addition, the examiner opined that the Veteran's shin splints had not been permanently aggravated in service and that the shin splints found on active duty had resolved. An August 2009 VA medical record reflects a reported history of chronic bilateral shin pain, without any history of trauma. The examiner noted no symptoms of exercise induced compartment syndrome. The Veteran had a history of clinical or presumptive diagnosis of stress fractures in the past, a recent bone scar showed no increased activity to his bilateral tibia. The diagnosis was chronic, idiopathic bilateral tibial pain. In a November 2010 VA medical report, the Veteran denied pain in his shins, and indicated that he had lost 10 pounds as a result of running every day, with no pain. He also noted that he wished to rejoin the military. November 2010 X-rays revealed normal tibia and fibula, bilaterally. In these records, the examiner noted that the Veteran had a history of bilateral shin splints, but did not have any at the present time. In sum, the competent medical evidence of record does not reflect a diagnosis of bilateral shin splints at any point during the appeal period. The x-rays and bone scans over the appeals period have been normal, with no evidence of stress fractures. While examiners have noted a history of shin splints, none of the medical providers have indicated a current diagnosis of shin splints. In fact, the April 2009 VA examiner, after a thorough review of the Veteran's symptoms and clinical testing, opined that shin splints were not present at the time of the examination. In November 2010, the Veteran was shown to have normal lower extremities, with no pain and no diagnosis of shin splints. In determining whether current disability is shown, the Board must also consider the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board finds that the clinical medical evidence of record fails to show that the Veteran has had a diagnosis of shin splints at any time over the appeals period. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Again, the Veteran contends that he has shin splints that began on active duty. In his February 2009 notice of disagreement, he asserted that his shin splints resulted in his inability to stand or walk for long periods of time and caused constant, sharp pain in his legs. At his Board hearing, the Veteran indicated that he began treating his pain with over the counter medications when he returned from service. He further indicated that, due to his bilateral shin splints, he could not stand for long periods of time. He took medication when he had symptoms, such as pain. His wife testified that he had pain at the end of the day, and she encouraged him to take medication. The Veteran reported that he was not working due to his shin splints. The Board notes that the Veteran and his wife are competent to report symptoms that the lay witness observed and is within the realm of his or her personal knowledge; that is, those which are perceived through the use of the senses. Layno, supra. Leg pain falls into such a category. Therefore, the Veteran and his wife are competent to provide lay evidence with regard to his leg pain. However, with regard to the contentions that he had pain consistent with shin splints that began during service, the Board finds that this statements are not credible. Indeed, while the Veteran sought treatment for pain in his legs in 2008 and 2009, and indicated at his hearing that he had pain, the November 2010 medical records reflect reports that he was running daily and that his legs were pain free. At this time, it appears that he felt confident enough in his condition that he expressed a desire to rejoin the military and inquired about securing supporting documentation from his medical providers that he was fit for service. These statements made to physicians for purposes of diagnosis and treatment, are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the above reasons, the lay statements as to continuous bilateral shin symptomatology are not found credible here. More importantly, however, even if the lay evidence were accepted as true, a grant of service connection would nevertheless be precluded. Again, the clinical record does not establish current disability at any time during the appeal period. Moreover, the lay evidence, to the extent accepted, only establishes pain, and not an underlying disability. Sanchez-Benitez, 13 Vet. App. 282, 285 (1999). The Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), in which the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." In this case, the Veteran and his wife are not competent to identify the medical condition of shin splints- they can merely indicate observable symptoms, which may or may not be attributable to such disorder. Moreover, the record here does not contain a contemporaneous medical diagnosis of shin splints, and therefore the criteria set forth in Jandreau have not been satisfied. Thus, the lay evidence of record cannot establish current diagnosis here. In sum, neither the medical nor lay evidence of record establishes a current shin splint disability or residuals thereof. This is an essential requirement in a claim of service connection, and in the absence of current disability, the claim must fail. Brammer, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for residuals of shin splints is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs