Citation Nr: 1315008 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-17 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right lower shin splint with tibial stress syndrome. 2. Entitlement to an initial disability rating in excess of 10 percent for left lower shin splint with tibial stress syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to August 1987, January 2002 to April 2002, and October 2006 to June 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, granted service connection for shin splints with tibial stress syndrome assigned as noncompensable (0 percent), effective June 18, 2007. In a June 2008 rating decision, the RO increased the noncompensable evaluation to a 10 percent disability rating for the right lower extremity and a 10 percent disability rating for the left lower extremity, both effective June 18, 2007. The Veteran was advised of the June 2008 rating decision, but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the assigned 10 percent disability ratings are not the maximum benefits available for the service-connected disabilities on appeal, this appeal continues for the entire initial rating period. In September 2010, the Veteran testified at a Board hearing held before a Veterans Law Judge in Boston, Massachusetts. A copy of the transcript is of record. In January 2013, the Veteran was informed that the Veterans Law Judge who conducted the hearing is no longer available to consider the appeal as an individual member of the Board, and thus was offered the opportunity to have another hearing before a member of the Board. The Veteran was advised that if he did not respond within 30 days, the Board would assume that he does not want another hearing and proceed accordingly. As of this date, there has been no response from the Veteran regarding a request for another Board hearing; therefore, the Board finds there is no hearing request pending at this time. The undersigned Veterans Law Judge has reviewed the hearing transcript. In a December 2010 decision, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. For the entire initial rating period on appeal, the service-connected right lower shin splint with tibial stress syndrome more closely approximates a manifestation of impairment of the tibia with slight knee or ankle disability. 3. For the entire initial rating period on appeal, the service-connected left lower shin splint with tibial stress syndrome more closely approximates a manifestation of impairment of the tibia with slight knee or ankle disability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right lower shin splint with tibial stress syndrome have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for left lower shin splint with tibial stress syndrome have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by an August 2007 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the August 2007 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claims on appeal, the evidence of record includes statements from the Veteran, June 2006 private medical statement, and VA examination reports dated September 2007 and January 2011. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In September 2010, the Veteran testified at a hearing held before a Veterans Law Judge at the local RO. Any deficiencies in development were addressed in the subsequent Board remand, as discussed below. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the VLJ who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). The Board notes the Veteran testified that he had received treatment at a sports clinic in Bedford. Pursuant to the Board's December 2010 remand instructions, the RO sent the Veteran and his representative a December 2010 notice letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not already of record. In a November 2011 supplemental statement of the case (SSOC) notice response, the Veteran indicated he has more information or evidence ot submit in support of his appeal, VA will wait the full 30-day period to give him a chance to submit this information or evidence, and if this evidence is not submitted within the 30-day period, his case will be returned to the Board. In a November 2011 statement, the Veteran's representative requested an additional 30 days to respond with new additional evidence. As of this date, no additional information or evidence has been submitted. The RO also arranged for VA joints and bone examinations in January 2011. That examination report reflects that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, and noted all findings necessary for proper adjudication of the matter. Hence, the Board concludes that the January 2011 examinations were adequate and substantially complied with the December 2010 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). The claims on appeal were readjudicated in the November 2011 SSOC. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria The Veteran contends that higher disability ratings are warranted for the service-connected disabilities on appeal. Specifically, such assertions were made in the June 2008 substantive appeal, via a VA Form 9, in a July 2008 appeal response form, and at the September 2010 Board hearing. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45 (2012). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Service-Connected Right and Left Lower Shin Splints with Tibial Stress Syndrome Pursuant to the rating criteria for impairment of the knee and leg, the Veteran's service-connected right and left lower shin splints with tibial stress syndrome are each rated at 10 percent disabling, from June 18, 2007, the date following separation from active service, to the present. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Impairment of the tibia and fibula is warranted a 10 percent evaluation with slight knee or ankle disability, a 20 percent evaluation with moderate knee or ankle disability, and a 30 percent evaluation with marked knee or ankle disability. Id. After a full review of the record, the Board finds that a preponderance of the evidence is against a disability rating in excess of 10 percent for the service-connected right and left lower shin splints with tibial stress syndrome, for any period. As discussed below, the evidence of record indicates the service-connected disabilities more closely approximate a manifestation of impairment of the tibia with slight knee or ankle disability. In a June 2006 private medical statement, Dr. N. A. noted the Veteran was seen in her office that day for bilateral lower extremity muscle strain. The Veteran had been placed on anti-inflammatory medications and asked to refrain from running until the symptoms improved and may restart activities gradually as tolerated. Pursuant to a VA general medical examination in September 2007, the examiner noted the Veteran's course since onset of bilateral lower extremity pain with shin splints/tibia is improved and current treatment consists of medication with good response and restricted activity. Clinical evaluation revealed, in pertinent part, bilateral shin splints and tibia pain, no flare-ups of muscle or joint disease, and no history of weakness or paralysis. The Veteran exhibited a normal gait, "no physical symptoms of the joint", to include swelling, effusion, tenderness, or other objective joint abnormalities. The examiner noted the Veteran was nontender with palpation of the bilateral lower legs and exuded no pain while walking with weight bearing. The September 2007 VA examiner diagnosed the Veteran with shin splints with tibial stress syndrome as a problem associated with the diagnosis. Impact on the Veteran's occupational activities listed decreased mobility, problems lifting and carrying, decreased strength, and lower extremity pain, as well as limited ability in the Reserves to complete a 2 mile run, complete the Army physical fitness test, and carry a rucksack, and restricted to run at his own pace. Additionally, he is assigned different work duties. On VA examination for the joints and bones in January 2011, the Veteran described tenderness over the bilateral shin bones from below the tibial tuberosities to the bilateral anterior ankles and pain these areas with standing and walking. He also reported that pain symptoms in the shins resolve with sitting or resting. The course since onset is progressively worse and there are no current treatments. Summary of joint symptoms of the knees and ankles revealed ankle pain, decreased speed of ankle joint motion, and affected motion of the ankle joint. Standing limitations noted the ability to stand for 15 to 30 minutes and functional limitations on walking noted the inability to walk for more than a few yards. Upon clinical evaluation, the Veteran exhibited a normal gait, no abnormalities of the bilateral knee joints, bilateral tenderness to palpation over anterior ankle with no erythema, edema, or increased warmth, and full range of motion of both knees and ankles with no objective evidence of pain on active or repetitive motion or additional limitations after repetitive motion. In connection with the January 2011 VA examinations, x-ray results of the ankles noted the tibiotalar joint appears unremarkable bilaterally, particularly on the mortise view, slight widening of the tibiotalar joint space on the anterior-posterior (AP) view of the right and left ankles is thought to be artifactual since it could not be confirmed on the mortise view. Otherwise, no other soft tissue, bony, or articular abnormality was seen bilaterally, nor fractures or dislocations. X-ray results of the bilateral tibia and fibula revealed no soft tissue, bony, or articular abnormalities. The Veteran was diagnosed with bilateral medial tibial stress syndrome with bilateral shin pain as a problem associated with the diagnosis. Impact on occupational activities include decreased mobility and pain, as well as mild to severe effects on usual daily activities. Following a review of the claims file and clinical evaluation, the VA examiner concluded there is no apparent weakened movement, excess fatigability or incoordination prior to onset or during pain symptoms. It was noted that the Veteran develops pain symptoms and must rest or sit to relieve the pain symptoms after walking 1/2 block. In addition, the Veteran testified at the September 2010 Board hearing that he experiences pain in the lower extremities while walking and can no longer run without pain. He also reported swelling after a mile walk which he treats with over-the-counter pain medication, ice, and elevation. The Board further notes that the evidentiary record does not include VA outpatient treatment records, nor has the Veteran or his representative asserted the existence of any such outstanding treatment records. Moreover, as discussed above, the Veteran testified at the September 2010 Board hearing that he had received treatment at a sports clinic in Bedford; however, no response was received pursuant to a December 2010 notice letter requesting him to provide sufficient information and authorization to obtain such records. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court in Schafrath v. Derwinski. Specifically, the evidence of record did not illustrate ankylosis of the right and/or left lower extremity, thus a higher disability rating under Diagnostic Code 5256 is not applicable. See 38 C.F.R. § 4.71a. At the January 2011 VA joints examinations, the Veteran exhibited full range of motion of the lower extremities, thus a higher disability rating under Diagnostic Codes 5260 and 5261 are not applicable. Id. The evidence of record also did not reveal objective findings or history of injury or dislocation to the cartilage, so a higher disability rating under Diagnostic Code 5258 is not applicable. Id. As a result, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an initial higher evaluation than the currently assigned evaluations for the service-connected disabilities on appeal. Moreover, the Board finds that the evidentiary record, to include the Veteran's reported symptomatology, does not demonstrate additional functional impairment beyond painful motion contemplated in the currently assigned 10 percent disability ratings. As stated above, the January 2011 VA examiner specifically opined that there Is no apparent weakened movement, excess fatigability, or incoordination prior to onset or during pain symptoms of the service-connected right and left lower shin splints with tibial stress syndrome. See 38 C.F.R. § 4.40 , 4.45, 4.59, DeLuca, 8 Vet. App. at 205. Therefore, fully considering the lay and medical evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's right and left lower shin splints with tibial stress syndrome, for any period as they more closely approximate a manifestation of impairment of the tibia with slight knee or ankle disability. 38 C.F.R. §§ 4.3, 4.7; DeLuca, 8 Vet. App. at 202. Neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected right and left lower shin splints with tibial stress syndrome, for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In fact, both VA examination reports indicate the Veteran is currently employed full time. The September 2007 VA examiner noted lost time from work during the prior 12-month period due to active duty service, and the January 2011 VA examiner noted 0 time lost from work during the last 12-month period. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the symptomatology and impairment of the Veteran's right and left lower shin splint with tibial stress syndrome is specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. The schedular rating criteria, Diagnostic Code 5262, specifically provides for the Veteran's pain, swelling, tenderness, and decreased movement. Such symptomatology is contemplated in the currently assigned disability rating under Diagnostic Code 5262 and DeLuca, 8 Vet. App. at 202. See 38 C.F.R. § 4.71a. As a result, referral for extra-schedular consideration for the service-connected right and left lower shin splint with tibial stress syndrome is not required. (CONTINUED ON NEXT PAGE) ORDER An initial disability rating in excess of 10 percent for right lower shin splint with tibial stress syndrome is denied. An initial disability rating in excess of 10 percent for left lower shin splint with tibial stress syndrome is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs