Citation Nr: 1302478	
Decision Date: 01/23/13    Archive Date: 01/31/13

DOCKET NO.  10-29 760	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for migraine headaches.

2.  Entitlement to service connection for left leg shin splints.

3.  Entitlement to an initial compensable rating for right knee strain.

4.  Entitlement to an initial compensable rating for right leg shin splints.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from September 1992 to July 2001.

These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In May 2012, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

At the time of the Board hearing, the Veteran submitted additional evidence along with a waiver of initial RO review of this evidence.  The Board will therefore consider the additional evidence.  38 C.F.R. § 20.1304(c) (2012).

The issues of entitlement to initial compensable ratings for right knee strain and shin splints are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the Veteran has had migraine headaches during the appeal period that had their onset in service.

2.  The preponderance of the evidence reflects that the Veteran has not had disability relating to left leg shin splints during the appeal period that was due to disease or injury in service, including left leg shin splints diagnosed in service.
CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, migraine headaches were incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  Shin splints were not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

As the Board is granting the claim for service connection for migraine headaches, discussion of the VCAA with regard to this claim is unnecessary.  As to the remaining claim being decided herein, for service connection for left leg shin splints, in a January 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate this claim.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the January 2008 letter complied with this requirement.

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the January 2008 letter.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records.  The Veteran was also afforded an April 2008 VA examination.  For the reasons shown below, this examination was adequate to decide the claim. 

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims for service connection for migraine headaches and left leg shin splints are thus ready to be considered on the merits.
 
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; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In this case, the Veteran claims that she has migraine headaches and left leg shin splints that had their onset in service.  The STRs reflect that she was diagnosed with both migraine headaches and left leg shin splints in service.  The Veteran testified during the Board hearing that she had symptoms of migraine headaches and shin splints in service and continued to have symptoms of these disabilities thereafter.

As the evidence reflects diagnoses of migraine headaches and left leg shin splints in service, the issue is whether the Veteran has current disability that is related to these in-service disorders. 

With regard to the current disability requirement, in order to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of current disability that has resulted from a disease or injury that occurred in service.  See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001).  A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet.App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities").  Moreover, the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The Veteran filed her claims for service connection for migraine headaches and shin splints in October 2007.

For the following reasons, service connection is warranted for migraine headaches but not for left leg shin splints.  After reviewing the claims file and examining the Veteran, the physician's assistant (PA-C) who conducted the April 2008 VA examination found, "There is no chronicity to support migraine headaches versus tension cephalgia.  Less likely than not a result of military service."  The examiner noted the in-service diagnoses of migraine headaches, the Veteran's statements that she continued to experience them, and there were no separate neurological findings with regard to headaches.  In contrast to the findings of the April 2008 VA examiner, however, post service treatment records from a Naval Hospital dated between January 2004 and September 2011 contain multiple diagnoses of migraine headaches.  These include November 2007 and August 2010 diagnoses made by physicians after examination and review of the Veteran's medical history.  The Board is thus confronted by conflicting diagnoses from the Naval Hospital physicians and the physician's assistant who conducted the April 2008 VA examination.  Each of them diagnosed the Veteran after reviewing her medical history and examining her.  As the Naval Hospital physicians were at least as well qualified and informed as the physician's assistant, the Board finds that the evidence is at least evenly balanced as to whether the Veteran has had migraine headaches during the appeal period.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  The Board therefore resolves this doubt in favor of the Veteran to find that she has met the current disability requirement with regard to migraine headaches.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012);  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

The only remaining issue is whether the current migraine headaches are related to or had their onset in service.  While the Veteran is not necessarily competent to identify the precise medical nature of her headaches, she is competent to state that she has experienced symptoms of head pain and sensitivity to light during and since service, and the Board finds her testimony credible in this regard.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  While a finding of service connection based on continuity of symptomatology requires that a condition be noted in service, post-service continuity of the same symptomatology, and a nexus between a current disability and the post-service symptomatology, medical evidence not required to meet the nexus requirement where a relationship between current disability and service on a continuity of symptomatology basis is one as to which a lay person's observation is competent.  See Savage, 10 Vet. App. at 497.  As the Veteran has offered competent, credible testimony that the symptoms diagnosed both in service and post service as migraine headaches have been continuous since service, she is entitled to service connection for migraine headaches on a continuity of symptomatology basis.

With regard to shin splints, the April 2008 VA examiner noted the diagnoses of shin splints in service and the Veteran's statements of stiffness and functional impairment associated with increased activity and weight bearing activities that were alleviated with rest.  On examination, deep tendon reflexes were 2+ in the lower extremities, strength testing to gravity and resistance were within normal limits and bilaterally equal for the Veteran's age.  Toe walk, heel walk, and toe to heel walk were done without complications or difficulties and there was normal sensation to light touch and was bilaterally equal.  There was no acute flare of shin splints with lack of activity.  Regarding diagnostic tests, the examiner noted that bilateral tibia fibula X-rays indicated a sclerotic density at the proximal right tibia and were otherwise normal.  The examiner concluded, "There is no objective finding to support shin splints of the left leg."  The Board notes that the examiner also concluded that a diagnosis of right chronic recurrent shin splints, at least as likely as not related to excessive weight or increased activity in service, was warranted.

In contrast to the migraine headaches, review of the post service treatment records reflects no complaints, treatment, or diagnoses of shin splints or related disorders, while it does contain complaints, treatment, and diagnoses of other disorders including musculoskeletal complaints of low back pain and normal findings with regard to the lower extremities.  There are also lengthy "problem lists" noting multiple disorders including migraine headaches but there is no mention of shin splints.  Given that the April 2008 VA examiner based his conclusion of a lack of evidence of shin splints on examination including X-rays of the left tibia and fibula, and his conclusion is supported by the lack of notation of shin splints in the post service treatment records from January 2004 through November 2011 along with notation of many other disorders and normal findings with regard to the lower extremities, the Board finds that the conclusion of a lack of shin splints is entitled to significant probative weight.  See Monzingo v. Shinseki, __ Vet. App. __, No. 10-922, 2012 WL 5869404, at *7-*8 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion and VA medical examiners are presumed competent in the absence of evidence to the contrary); Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).

The Board notes that the lack of a post service diagnosis of shin splints does not end its inquiry.  As indicated by the law and cases cited above, the current disability element does not necessarily require a specific diagnosis, only that there is disability due to disease or injury in service.  Moreover, what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim.  Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Therefore, the Veteran need not have been diagnosed with shin splints in order to be entitled to compensation.
 
During the Board hearing, the Veteran testified that she felt excruciating, burning pain ripping the front of her left leg when walking or jogging and attributed this pain to shin splints.  The Veteran is competent to report her observation of pain but the attribution of this pain to the specific disorder of shin splints is the type of medical question as to which lay testimony has been found not to be competent.  See Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent).  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  The Veteran's statement is therefore not competent in this regard.  To the extent that the Veteran is competent to attribute her pain to shin splints, the Board finds that the specific finding of a lack of diagnosis of shin splints by the trained medical professional who performed the April 2008 VA examination after reviewing the claims file is of greater probative weight than the Veteran's lay assertions.

Similarly, the Veteran's representative indicated in his questions during the Board hearing that shin splints had always been diagnosed bilaterally, implying that the grant of service connection for right leg shin splints warranted the same disposition of the claim for service connection for left leg shin splints.  For the reasons noted above, the representative's lay statement is not competent in this regard.  To the extent that the Veteran's representative was competent to make this medical assertion, the probative value of this lay assertion is outweighed by that of the opinion of the April 2008 VA examiner, a trained medical professional who considered both right and left leg shin splints and found that the evidence supported a diagnosis only of right leg shin splints that were related to service.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for left leg shin splints while the evidence is at least evenly balanced as to the claim for service connection for migraine headaches.  The benefit-of-the-doubt doctrine therefore warrants the grant of service connection for migraine headaches and is inapplicable to the claim for service connection for left leg shin splints, which must be denied.   See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. 


ORDER

The claim for service connection for migraine headaches is granted.

The claim for service connection for left leg shin splints is denied.


REMAND

With regard to the claims for initial compensable ratings for right knee strain and right leg shin splints, the Veteran's representative suggested at the conclusion of the Board hearing that a remand for new examinations were warranted.  The most recent VA examination as to these disabilities was in April 2008.  Moreover, during the Board hearing, the Veteran's testimony suggested that the symptoms of these disabilities had worsened since the April 2008 VA examination.  A remand for a new VA examination as to the severity of the right knee strain and right leg shin splints is therefore warranted.  Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability, such as when when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability).

The Board also notes that the Veteran's right leg shin splints have been rated under 38 C.F.R. § 4.73, Diagnostic Code (DC) 5312, applicable to injury to muscle group XII.  The RO should also consider rating this disability under 38 C.F.R. § 4.71a, DC 5262, applicable to impairment of the tibia and fibula.

Accordingly, the claims for initial compensable ratings for right knee strain and right leg shin splints are REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected right knee strain and right leg shin splints.  The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

The VA examiner indicate all present symptoms and manifestations attributable to each of the Veteran's service-connected right knee strain and right leg shin splints. In evaluating the Veteran, the examiner should report complete range of motion findings for the right leg.  The examiner should be asked to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the measured area is used repeatedly over a period of time.  The examiner should also be asked to determine whether the right leg exhibits weakened movement, excess fatigability or incoordination. These determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination.

The VA examiner is requested to give as thorough consideration as possible to the question of whether there is additional range of motion loss attributable to pain, weakness, or other forms of functional loss.  In addition, any impairment to the tibia or fibula should be noted, to include whether there is nonunion or malunion and the degree of disability caused by malunion, if any.  The examiner should also note any injury to the muscles of the right leg caused by the shin splints.

2.  Then, readjudicate the claims for initial compensable ratings for right knee strain and right leg shin splints, to include consideration of all potentially applicable diagnostic codes including DC 5262.  If any benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs