Citation Nr: 1310231 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-25 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for right leg shin splint, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for left leg shin splint, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from March 2000 to October 2001. He had a previous period of active duty for training from August 1988 to November 1988 while a member of the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) following a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the Veteran's claims file currently resides with the RO in Montgomery, Alabama. In April 2009, the Veteran withdrew his request for a Board hearing. Later that month, the Veteran testified at the RO before a Decision Review Officer. A transcript of that hearing is of record. In July 2011, the Board remanded to the Appeals Management Center (AMC) the Veteran's claims for increased ratings for right and left leg shin splints, as well as a claim for service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). In a January 2013 rating decision, the RO granted service connection for bipolar disorder with psychotic features (also claimed as PTSD). It assigned a 50 percent rating effective April 9, 2004 and a 70 percent rating effective May 8, 2008. The RO otherwise issued a supplemental statement of the case, continuing the separate 10 percent ratings for the Veteran's right leg shin splint and for his left leg shin splint. These two claims have since been returned to the Board for further appellate review. FINDINGS OF FACT 1. A right leg shin splint is manifested by pain and no more than slight impairment of the right tibia and fibula; moderately severe injury of the flexor digitorum longus muscle or tibial tendinous strain or inflammation has not been shown. 2. A left leg shin splint is manifested by pain and no more than slight impairment of the right tibia and fibula; moderately severe injury of the flexor digitorum longus muscle or tibial tendinous strain or inflammation has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right leg shin splint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5022, 5024, 5262 (2012); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2012). 2. The criteria for a rating in excess of 10 percent for left leg shin splint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5022, 5024, 5262 (2012); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim-such as in a statement of the case (SOC) or supplemental statement of the case (SSOC). That way the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the present claims, a notice letter was sent by the RO to the Veteran in June 2003, prior to adjudicating the Veteran's claims for ratings in excess of 10 percent for right leg and left leg shin splints. The Veteran's claims were adjudicated in September 2004 and the Veteran filed a notice of disagreement with that decision. Another notice letter was sent in July 2009 that provided similar notice for substantiating the Veteran's claims, but the letter also included the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The July 2009 notice letter came after the initial adjudication by the RO, but more recent December 2010 and January 2013 SSOCs appropriately readjudicated the claims, thereby curing the notice timing error. Prickett, 20 Vet. App. at 376. Otherwise, the June 2003 and July 2009 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disabilities. VA has also fulfilled its duty to assist the Veteran with his claims by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. To this end, the RO and the AMC have obtained the Veteran's VA outpatient treatment records from the Central Alabama Veterans Health Care System, as well as the Veteran's Social Security Administration (SSA) records. The Veteran has also been afforded VA examinations to address the level of disability associated with his right leg and left leg shin splints. The Veteran's most recent VA C&P examination in August 2009. Although evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. § 5103A(d)(2). In the present case, the Veteran has not submitted any additional evidence demonstrating a worsening of his condition. The evidence, in particular the Veteran's VA outpatient treatment records, reflect continued subjective complaints of pain associated with his right leg and left leg shin splints. The requirement that the Secretary provide a thorough and contemporaneous examination is tied to those situations where the record does not adequately reveal the current state of a claimant's disability. See Caluza v. Brown, 7 Vet. App. 498, 505. The Board finds the record before it sufficient to adequately consider the Veteran's claims on appeal. Therefore, the Board cannot conclude that its duty to assist in this instance requires an additional medical examination. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence, and VA's duty to notify and assist the Veteran has been met. II. Analysis Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). There is no specific code for "shin splint" under VA's Schedule for Rating Disabilities. When an unlisted condition, such as shin splint, is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20. In the current appeal, the RO has evaluated the Veteran's service-connected right and left leg shin splints by analogy to Diagnostic Code 5024 for "tenosynovitis," and to Diagnostic Code 5262 for "impairment of the tibia and fibula." Under Diagnostic Code 5024, tenosynovitis will be rated on limitation of motion of the affected parts, as arthritis, degenerative, except gout which will be rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Diagnostic Code 5262 provides for a 10 percent rating for malunion with slight knee or ankle disability, a 20 percent rating for malunion with moderate knee or ankle disability, a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating is warranted for nonunion with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Throughout the appeal period, the Veteran has complained of bilateral lower leg pain. The Veteran's complaints have been associated with his shins and also with his knees and ankles. In reports of August 2002 and July 2003 VA examinations, the examiners noted the Veteran's report of pain with palpation of the lower extremities, and pain with climbing stairs or activity. Otherwise, a neurological examination was negative and an X-ray of the tibia and fibula was normal. The August 2002 VA examiner provided a diagnosis of shin splints. The July 2003 VA examiner noted a history of shin splints with "no current diagnosis" pertaining to the tibia and fibula. In a subsequent report of September 2003 medical examination related to the Veteran's claim for SSA disability benefits, the Veteran complained of knee, ankle, and shin pain. The shin pain reportedly limited the Veteran's ability to walk and he used a cane due to his ankle problems. The examiner's diagnosis included bilateral tibial shin splint with chronic severe pain. In October 2003, a bone scan of the Veteran's tibia and fibula did not reveal any abnormality. In a report of August 2004 VA joints examination, the Veteran again complained of leg pain with activity and he reported pain with palpation of his legs. The VA examiner commented that shin splints were normally a limited problem secondary to high impact activity, and the Veteran had not reported any recent high impact activity. The examiner commented that he doubted that the Veteran had shin splints. In a November 2004 VA neurology consult note, the clinician reported that the Veteran was walking on Canadian crutches, and there was moderate pain and disability behavior to include sighing, groaning, and straining. The clinician commented that there was an inconsistent need for external assistance to relieve weight bearing. With respect to the Veteran's gait, the clinician noted that there was "exaggerated disability and stertorous breathing" secondary to knee and ankle pain. The clinician's impression included subjective multifocal arthralgia; symptom and disability magnification; and except for pain/voluntary inhibition, demonstrably normal muscle function. The clinician also noted the following, [The Veteran] [complained of] bilateral knee and ankle pain, and of discomfort when asked to use the [lower extremity] muscles to load those joints. Muscles themselves function normally, and are not the primary source of his pain. As noted by Rheumatology, [lower extremity] edema may be confirmatory of a bonafide inflammatory process yet to be diagnosed. Nevertheless, there is also objective symptom magnification, and in the context of compensation seeking, personality testing and psychology assessment is advised. In a September 2006 SSA disability decision, the Veteran's disabling conditions were noted to include deterioration of ligaments and tendon inflammation in both knees that affect the use of the legs, ankles and lower back; non-inflammatory arthritis; fibromyalgia; and degenerative osteoarthritis. In a May 2009 VA psychiatry note, the Veteran complained of a great deal of pain in his knees, hands, and lower back. In a report of August 2009 VA examination, the Veteran reported that his shin pain had progressively worsened. The examiner commented that there was no muscle or bone damage, tendon damage, or nerve damage. The examiner also commented that there was no specific evidence of periosteal reaction along the medial tibial cortex to specifically suggest shin splints. A February 2010 electromyography/nerve conduction velocity test reflects the Veteran's complaints of bilateral numbness of his legs and feet for five years. Findings revealed a sensory motor axonal loss neuropathy of mild to moderate severity that was most likely associated with diabetic neuropathy. In a December 2010 physical medicine rehabilitation note, the Veteran complained of a pain level of 8 out of 10 (10 being the worst). The pain had been constant for years and was described as aching without radiation. Aggravating factors were squatting, bending, and prolonged sitting. Relieving factors were medications, TENS unit, heat modalities, and walking. Clinical evaluation revealed, in particular, tenderness along the joint lines of the knees bilaterally with limited range of motion and crepitus of the knees. More recently, a February 2012 VA orthotics/prosthetics note reflects the Veteran's use of ankle and hinged knee braces bilaterally. The lower extremities were noted as warm without cyanosis or edema. A July 2012 VA cardiology consult note reflects that the Veteran was very sedentary and did not do any regular exercise. He was noted as having chronic pain in his shins, knees, and back. A system review revealed no skin, blood, or bone problems other than fibromyalgia-like symptoms. In the present case, the Veteran is competent to report a symptom such as pain. The September 2003 SSA disability examiner did diagnose the Veteran as having bilateral tibial shin splint with chronic severe pain, a diagnosis which appears to have been based on the Veteran's subjective complaints. The Board has weighed the Veteran's complaints of pain against the objective clinical and diagnostic test findings. The objective evidence does not reveal chronic injury or disability associated with the Veteran's tibia, to include any evidence of muscle or tendon injury or strain. Here, the Board finds the clinical and diagnostic test findings very probative in assessing the severity of the Veteran's right leg and left leg shin splints. They do not reflect more than slight limitation of function attributable to shin splints. Therefore, taking into account the medical evidence noted above, the Board finds that the Veteran's service-connected right leg and left leg shin splints do not warrant disability evaluations in excess of the currently assigned 10 percent. In this regard, considering the Veteran's claims under Diagnostic Code 5024 for tenosynovitis, the evidence does not reflect tendon inflammation or arthritis of either the right tibia or left tibia, nor is there limitation of motion of either the right leg or left leg associated with the bilateral shin splint disability. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Additionally, under Diagnostic Code 5262, the evidence does not demonstrate tibia and fibula impairment manifested by malunion with moderate knee or ankle disability, malunion with marked knee or ankle disability, or nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In this regard, the evidence of record fails to demonstrate any disability of the Veteran's ankles or knees as being associated with a right leg or left leg shin splint. Otherwise, in an October 2009 rating decision, the RO denied the Veteran's claims for service connection for an ankle injury, right knee condition, and left knee condition. The Veteran did not appeal the RO's decision. The Board has also considered the Veteran's service-connected right leg and left leg shin splints under 38 C.F.R. § 4.71a, Diagnostic Code 5022 for periostititis. However, as noted above, the examiner in August 2009 saw no evidence of periosteal reaction along the medial tibial cortex to specifically suggest shin splints. Likewise, nowhere else in the medical evidence is it reported that the Veteran suffers from periostititis associated with either the right or left tibia. As such, an increased rating for right leg and left leg shin splints under Diagnostic Code 5022 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5022. Finally, the Board has also considered the Veteran's service-connected right leg and left leg shin splints under 38 C.F.R. § 4.73, Diagnostic Code 5311 (2012) for muscle injury associated with Muscle Group XI. A "shin splint" is defined as strain of the flexor digitorum longus muscle occurring in athletes, with pain along the shin. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1779 (31st ed. 2007). Injury of the flexor digitorum longus muscle is considered under Diagnostic Code 5311. Under Diagnostic Code 5311, a 10 percent evaluation is warranted for moderate muscle injury, a 20 percent evaluation is warranted for moderately severe muscle injury, and a 30 percent evaluation is warranted for severe muscle injury. As noted previously, in the report of August 2009 VA examination, the examiner commented on the lack of muscle or bone damage, tendon damage, or nerve damage. Likewise, nowhere else in the medical evidence is it reported that the Veteran suffers from any injury to the flexor digitorum longus muscle. As such, a rating in excess of 10 percent for residuals of muscle injury is not warranted. 38 C.F.R. § 4.73, Diagnostic Code 5311. Furthermore, the Board has considered whether the evidence supports a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011), citing DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Here, notwithstanding the Veteran's complaints of shin pain bilaterally, the evidence of record does not demonstrate more than slight limitations due to the shin splints. As noted above, the December 2010 VA physical medicine rehabilitation note reflects the Veteran's complaints of pain aggravated by squatting, bending, and prolonged sitting. The pain was reportedly associated with the Veteran's knees and back. He was not noted at that time to complain of any limitations related to either his right leg or left leg shin splints. Also, the February 2012 VA orthotics/prosthetics note reflects the Veteran's use of ankle and hinged knee braces bilaterally. The record does not suggest that the Veteran's use of assistive devices is related to any functional limitations due to shin splints. Therefore, without sufficient evidence that the Veteran's right leg or left leg shin splints have resulted in, at a minimum, impairment of the right tibia and fibula with associated knee or ankle disability, moderately severe injury of the flexor digitorum longus muscle, or tibial tendinous strain or inflammation, a rating in excess of the currently assigned 10 percent for the Veteran's service-connected right leg and left leg shin splints is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5022, 5024 and 5262; 38 C.F.R. § 4.73, Diagnostic Code 5311; Hart, 21 Vet. App. at 509-10. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's right leg and left leg shin splints have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of the Veteran's disabilities have been accurately reflected by the schedular criteria. In this case, notwithstanding the Veteran's complaints of pain, there is a lack of any objective findings to support any higher ratings than the currently assigned 10 percent. Thus, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his shin splints. See 38 C.F.R. § 4.16. In the event that there is anything in the record that implicitly raises a claim of TDIU, review of the overall evidence does not reflect that the service-connected shin splints alone preclude employment. The limitation of function attributable to the shin splints is no more than slight and there is no suggestion in the record that he is unemployable due to his shin splints. Thus, entitlement to a TDIU due to his service-connected shin splints is not warranted. For all the foregoing reasons, the Board finds that the claims for ratings in excess of 10 percent for right and left leg shin splints must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for right leg shin splint is denied. A rating in excess of 10 percent for left leg shin splint is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs