Citation Nr: 1308115 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-31 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable rating for left shin splints. 2. Entitlement to an initial compensable rating for right shin splints. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from March 1993 to April 1993 and from May 1999 to August 2001. This appeal came before the Board of Veterans' Appeals (Board) from a decision of March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2010 and June 2012, the Board remanded the case for additional development and due process concerns. The issue of entitlement to a compensable rating based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 has been developed for appellate consideration but has been rendered moot as a result of the Board's determination that 10 percent ratings are warranted for the Veteran's bilateral shin splints. FINDING OF FACT The shin splints do not result in limitation of motion or malunion, but the impairment in each lower extremity is analogous to a painful scar. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but not higher, for left shin splints have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7804; 38 C.F.R. § 4.71a, Diagnostic Code 5020 (2012). 2. The criteria for an initial 10 percent rating, but not higher, for right shin splints have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7804; 38 C.F.R. § 4.71a, Diagnostic Code 5020 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in April 2006. Although this letter was mailed after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claims. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record reflects that all VA and private post-service medical evidence identified by the Veteran was obtained. The records associated with the Veteran's application for Social Security Administration disability benefits were also obtained. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has also been afforded an opportunity for a hearing before a DRO or before the Board. The Veteran has been afforded appropriate VA examinations, most recently in January 2011. The Veteran has not asserted, and the evidence of record does not show, that her conditions have increased significantly in severity since that examination. The Board acknowledges that the Veteran has contended that the January 2011 VA examination is inadequate because the examiner did not address range of motion or conduct additional X-ray imaging or other testing. Review of the January 2011 VA examination report indicates that the examiner determined that the shin splints did not affect the motion of any joint; as such, it could not interfere with range of motion and no testing was needed. Furthermore, the record includes other range of motion findings, dating both before and after the examination. As such the Board finds the examiner's failure to perform range of motion testing is not prejudicial. The record also includes several X-ray reports, all of which reflect normal findings for the lower extremities. The medical record contains no indication that new radiographic testing would reveal findings supportive of these claims. As such, the Board finds the examiner's failure to conduct additional radiographic testing is not prejudicial. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the previous Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Compensable Ratings for Shin Splints The Veteran is assigned noncompensable ratings for right and left shin splints with occasional edema. The Veteran contends that compensable ratings are warranted. She has reported pain and functional limitation due to the shin splints. 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. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 The record includes VA and private treatment records and VA examination records. The treatment records consistently reflect findings of normal gait, without use of an assistive device, and generally reflect findings of normal musculoskeletal exam, no edema, and normal motor strength and range of motion in the lower extremities. The records further reflect that at least some of the pain and functional impairment reported by the Veteran is unrelated to the shin splints; it has been attributed to sarcoidosis/polyarthritis and E Nodosum. See, e.g., November 2008, March 2010 and May 2011 private treatment records; July 2006, March 2012, and May 2012 VA treatment records. A February 2006 VA examination record reflects the Veteran's complaints of lower extremity pain, weakness, stiffness, fatigability, and swelling. She denied flare-ups. Range of motion testing revealed motion from 0 to 140 degrees in the knees, with right knee pain with extension to 0 and left knee pain with extension from -15 to 0. Otherwise, all major joints had full painless range of motion. Repetition had no impact on range of motion or function. Examination revealed no swelling, effusion, tenderness, muscle spasm, laxity, atrophy, or fasciculation, and the Veteran was able to walk without an assistive device, though gait was antalgic. The January 2011 VA examination record reflects the Veteran's report of shin splints affecting her hips and pelvis, causing her to be imbalanced. She also reported that it increased pain sensitivity on her left lower abdomen. There was no inflammation, deformity, or general debility. The condition did not affect motion of a joint, and an assistive device was not needed for walking. The Veteran reported that she had severe flare-ups daily, which lasted hours and which limited her ability to shop and participate in sports. Examination revealed normal gait without evidence of abnormal gait-bearing or limitation on standing or walking. There was no evidence of bone or joint abnormality, genu recurvatum, malunion of the os calcis or astragalus, atrophy, or edema. There was no constitutional sign of bone disease. The record indicates that the Veteran was unemployed, though she indicated it was due to mental illness. The examiner stated that the shin splints caused significant effects on occupational functioning due to problems with lifting and carrying and pain and mild to moderate effects on daily activities. The shin splints are rated by analogy to Diagnostic Code (DC) 5020, which rates synovitis. The rating criteria indicate that synovitis is rated on limitation of motion of the affected part, as degenerative arthritis under DC 5003. DC 5003 provides a 10 percent rating for limitation of motion that is noncompensable under the appropriate diagnostic code. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The rating criteria provide noncompensable ratings for limitation of flexion of the knee to 60 degrees and limitation of extension of the knee to 5 degrees. The rating criteria also provide compensable ratings for moderate limitation of motion of the ankle and ankylosis. 38 C.F.R. § 4.71a, DC 5256, 5260, 5261, 5270, 5271, 5272. The appropriate rating for limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. A compensable rating is not warranted for either lower extremity based on limitation of motion because the probative evidence does not suggest that the Veteran has limitation of motion of a joint due to the left or right shin splints. The Board acknowledges that the Veteran has reported limitation of motion and functional impairment, to include limitation of the hip. The reported impairment is based, at least in part, on conditions unrelated to the shin splints, however, namely the sarcoidosis/polyarthritis and osteoarthritis of the joints, and the record reflects no medical findings suggestive of limitation of motion of any joint due to the shin splints. In fact, the 2011 VA examiner determined that the condition did not affect motion of a joint. Although the Veteran is competent to report her symptoms and functional impairment, she is not competent to attribute the symptoms or functional impairment to her shin splints, as distinct from the other conditions affecting the lower extremities: that determination requires a medical expertise. Furthermore, to the extent that she is competent, the Board finds the history is less probative than the medical evidence of no limitation of motion due to the shin splints. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). Thus, the Board finds a compensable rating is not warranted under the rating criteria pertaining to limitation of motion. The Board has considered whether a compensable rating is warranted under a different orthopedic diagnostic code. There is no evidence of instability, genu recurvatum, malunion of the os calcis or astragalus, or astrogalectomy due to the shin splints. Thus, a compensable rating is not warranted under Diagnostic Code 5257, 5263, 5273, or 5274. The Board acknowledges that shin splints are arguably the result of an impairment of the tibia. A compensable rating is not warranted under DC 5262, which rates impairment of the tibia and fibula, however, because there is no evidence of malunion: X-ray images are consistently normal. In the Board's opinion the symptomatology associated with the shin splints is analogous to a painful scar. Therefore, the Board concludes that a 10 percent rating is warranted for each lower extremity under 38 C.F.R. § 4.118, DC 7804 (2008). The Board notes that the criteria were revised in October 2008 but the revised criteria are not applicable because the Veteran's claim was received prior to October 2008 and she has not requested that her claim be considered under the revised criteria. The Board has considered whether there is any schedular basis for granting more than a 10 percent rating for either disability but has found none. Consideration has been given to assigning a staged rating; however, at no time during the period in question has either disability warranted more than a 10 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has additionally considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In addressing this The symptomatology and impairment caused by the Veteran's right and left shin splints is contemplated by the schedular criteria, and the rating code provides higher ratings for more severe impairment. Therefore, referral for extra-schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER The Board having determined that an initial 10 percent rating is warranted for left shin splints, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. The Board having determined that an initial 10 percent rating is warranted for right shin splints, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs