Citation Nr: 1304871 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-14 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable evaluation for service-connected left shin splints. 2. Entitlement to a compensable evaluation for service-connected right shin splints. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to March 2009. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (the RO). By that rating decision, the RO granted service connection and 0 percent evaluations for left and right shin splints. The Veteran appealed that decision and this issue is currently before the Board. On his March 2010 VA Form 9, the Veteran requested a Board hearing. The hearing was scheduled for January 15, 2013. The Veteran was notified of the hearing in a November 2012 letter sent to the correct address on file. The record reveals that the Veteran failed to show up for this hearing. To date, he has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. As of this writing, this issue has not been raised by the record and will not be addressed in this decision. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Shin splints of the right leg have been characterized by constant pain with associated weakness and tenderness of the ankle, with no showing of malunion. 2. Shin splints of the left leg have been characterized by constant pain with associated weakness and tenderness of the ankle, with no showing of malunion. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent for shin splints of the right leg have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.59, 4.71a Diagnostic Code 5262 (2012). 2. The criteria for an initial evaluation of 10 percent for shin splints of the left leg have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.59, 4.71a Diagnostic Codes 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n 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/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluation for bilateral shin splints, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records and VA medical records have been obtained. VA provided the Veteran adequate medical examinations in December 2008, June 2010, and February 2011. The examinations are adequate because each contains a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also address the functional effects caused by the Veteran's disabilities, to include the effects on his occupation and usual daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as here, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous.' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran's bilateral shin splints are rated as 0 percent disabling under the analogous diagnostic code for impairment of tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5262. A 10 percent evaluation is warranted for a malunion of the tibia and fibula with slight knee or ankle disability. Id. A 20 percent evaluation is warranted for a malunion of the tibia and fibula with moderate knee or ankle disability. Id. A 30 percent evaluation is warranted for a malunion of the tibia and fibula with marked knee or ankle disability. Id. A 40 percent evaluation is warranted for a non-union of the tibia and fibula with loose motion requiring a brace. Id. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Analysis In a May 2009 rating decision, the Veteran was granted service connection for bilateral shin splints. Noncompensable (0 percent) evaluations were assigned for each extremity separately, effective April 1, 2009. The Veteran appealed that initial evaluation and in a June 2009 notice of disagreement, indicated that his condition was worse than reflected in the non-compensable evaluations assigned to him due to the pain. He indicated that the pain prevented him from conducting most daily activities, such walking, standing, bending down, mowing the lawn, and climbing stairs, as well as precluded him from employment in professions, such as becoming a police officer or fireman. In his current occupation, the Veteran reported that the pain makes it difficult to walk to and from the aircraft he services and to climb ladders and other equipment. He reported that his attempts to run only resulted in severe leg pain and that even low impact exercise, such as elliptical machines and exercise bikes, are painful. In a March 2010 statement, the Veteran indicated that his condition had worsened since his December 2008 VA examination and that he had sustained injuries to his ankles due to tenderness and weakness caused by his shin splints. The Veteran also submitted documentation from the City of Houston Fire Department showing that he was unable to complete physical testing due to pain and swelling in his legs. A review of the Veteran's VA outpatient treatment records reveals that, in April 2010, the Veteran was complaining of painful shins at a social work appointment. The Veteran was provided with a VA examination in December 2008. At this examination, the examiner noted the Veteran's complaints of constant pain since 2007. The Veteran described the pain as a seven on a scale of one to ten. The examiner tested both the Veteran's knees and ankles. Range of motion testing for the bilateral knees revealed a flexion of 140 degrees and an extension of 0 degrees, which was within normal limits. There was no additional limitation noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. Range of motion for the bilateral ankles revealed a dorsiflexion of 20 degrees and a plantar flexion of 45 degrees, which was within normal limits. There was no additional limitation noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. No malunion or non-union of the tibia or fibula was noted. The examiner diagnosed bilateral shin splints that were based upon subjective complaints of pain and objective findings of tenderness to palpation. The Veteran was administered an additional VA examination on June 2010. At this examination, the examiner noted the Veteran's history of pain. Objective testing revealed the Veteran's knees and ankles to be within normal limits. Range of motion testing for the bilateral knees revealed a flexion of 145 degrees and an extension of 0 degrees, which was within normal limits. There was no indication of pain with motion. There was no additional limitation noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. X-ray findings revealed no abnormalities. The examiner diagnosed the Veteran with bilateral shin splints. The examiner noted that the Veteran suffered significant occupational effects from this condition and that it had mild effects on chores and moderate effects on sports and exercise. The claims file was not available for review in this examination. The Veteran was provided with an additional VA examination on February 2011. At this examination, the examiner noted the Veteran's history of pain, in particular knee and ankle pain when running. Functional limitations were noted on standing and walking, with the Veteran only being able to stand for an hour and only being able to walk for more than one quarter of a mile, but less than a mile. Objective testing revealed the Veteran's knees and ankles to be within normal limits. Range of motion testing for the bilateral knees revealed a flexion of 145 degrees and an extension of 0 degrees, which was within normal limits. There was no indication of pain with motion. There was no additional limitation or pain noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. Range of motion for the left ankle revealed a dorsiflexion of 18 degrees and a plantar flexion of 46 degrees. There was no indication of pain with motion. There was no additional limitation noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. Range of motion for the right ankle revealed a dorsiflexion of 17 degrees and a plantar flexion of 46 degrees. There was no indication of pain with motion. There was no additional limitation noted due to pain, fatigue, weakness, lack of endurance, or incoordination after repetition. X-ray findings revealed no abnormalities. No ankylosis or malunion was found. The examiner, however, noted that a bone scan had not been conducted for the Veteran and that such a scan would be necessary to give a thorough diagnosis of the existence and severity of the Veteran's bilateral shin splints. Without a bone scan, the examiner was unable to confirm the diagnosis of shin splints or comment on a possible worsening of this condition. Based on the above, the Board finds bilateral shin splints most nearly approximate the criteria for a 10 percent evaluation throughout the entire appeals period,. While the record does not show evidence of malunion, the Veteran has consistently complained of constant pain with associated weakness and tenderness of the ankles throughout the entire appeals period. It also appears that his pain on movement and swelling have caused functional loss in his abilities to conduct many occupational and daily tasks. See DeLuca, 8 Vet. App. at 202. Moreover, such statements are deemed credible here, as his statements have been consistent and further corroborated by independent evidence, such as the City of Houston Fire Department records. Therefore, he is entitled to at least the minimum compensable rating for his shin splints of the right and left legs for the entire appeals period. See 38 C.F.R. § 4.59; see also Burton, 25 Vet. App. at 5. In order to warrant the next higher evaluation, the evidence must show a malunion of the tibia and fibula with moderate knee or ankle disability. Because the medical evidence of record has not at any time during the pertinent appeals period shown the presence of a malunion, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for bilateral shin splints. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected bilateral shin splints, but the evidence reflects that those manifestations, namely the presence of a malunion, are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's bilateral shin splints, as the criteria assess social and occupational impairment to include addressing various limitations of painful motion. Accordingly, referral is not required. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's bilateral shin splints at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); see also Fenderson, 12 Vet. App. at 126. ORDER Subject to the provisions governing the award of monetary benefits, entitlement to an initial evaluation of 10 percent for left shin splints is granted. Subject to the provisions governing the award of monetary benefits, entitlement to an initial evaluation of 10 percent for right shin splints is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs