Citation Nr: 1315856 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 04-37 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right leg shin splints. 2. Entitlement to an increased rating for residuals of a left wrist fracture, currently rated 10 percent. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing before the undersigned in July 2007. A copy of the hearing transcript has been associated with the record. The Board remanded the claims for additional development in October 2007, June 2010, and May 2012. That development having been completed, the issues are properly before the Board for disposition. At the time of the prior remands, the issues of entitlement to service connection for a psychiatric disability, a back disability, a right knee disability, and a right ankle disability were also on appeal. A September 2011 rating decision granted service connection for a psychiatric disability. As the September 2011 rating decision represents a full grant of the benefits sought on appeal, that issue is no longer before the Board. The Board denied service connection for a back disability and granted service connection for a right knee disability in May 2012. A February 2013 rating decision granted service connection for a right ankle disability. Therefore, those issues are no longer on appeal. FINDINGS OF FACT 1. The evidence of record does not contain a diagnosis of right leg shin splints. 2. The Veteran is right-hand dominant. 3. The Veteran's left wrist disability is manifested by subjective complaints of pain, swelling, weakness, stiffness, giving way, and locking, including limited gripping and lifting, and objective evidence of tenderness and decreased motion; there is no evidence that the range of motion of the left wrist is limited by dorsiflexion less than 15 degrees, or palmar flexion in line with the forearm, and there is no evidence of ankylosis. 4. The Veteran's left wrist disability does not present an exceptional or unusual disability picture which would warrant referral for consideration of an extraschedular rating. CONCLUSIONS OF LAW 1. Right shin splints were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for a rating in excess 10 percent for residuals of a left wrist fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code 5215 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what the evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Board finds that VA's duty to notify has been satisfied. The Veteran was notified in April 2004 of the criteria for establishing service connection and an increased rating, the evidence required, and his and VA's respective duties for obtaining evidence. That letter addressed all notice elements and predated the initial adjudication in June 2004. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded in March 2006. Nothing more is required. As for the duty to assist, the Veteran's service medical records and post-service medical records have been obtained, to include additional VA treatment records in accordance with the May 2012 Board remand. Pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). An additional VA examination was provided in June 2012 to ascertain whether the Veteran had shin splints which were related to his period of service, and to assess the severity of his left wrist disability. When VA undertakes to provide an examination or opinion, VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issues at hand. A rationale was provided with the opinion, and all diagnostic measurements were performed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). 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 failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Service Connection The Veteran claims that he suffers from right leg shin splints that are related to his period of active service. To prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which does not include shin splints. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The Board finds that the evidence of record does not contain a diagnosis for right shin splints. Therefore, the evidence does not show the presence of the claimed disability. The first and most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the claimed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The Veteran's service medical records are silent for any diagnosis of right shin splints. While several records chronicle knee and ankle complaints, there are no records which apply specifically to shin splints. On separation in May 1976, it was noted that the lower extremities were normal, save for scars on the left foot and right knee. After service, the Veteran has received extensive VA and private treatment for various medical disorders. However, there is simply no medical evidence of record, at any time since the contemporaneous time to when the Veteran filed his claim in 2004, to indicate a diagnosis for shin splints, to include the most recent VA examination in June 2012, which found that right shin splints were not present, and therefore an etiological opinion was not provided. During an October 2009 VA examination, the Veteran reported that, during service, he was put on profile for shin splints. He stated that he was not in receipt of current treatment, and that he had no pain in the area. Following an examination, the examiner did not diagnosis shin splints. Instead, he was diagnosed with enthesophytes, and shin splints only by history. That is not the same as a diagnosis of shin splints, which result from stress on the tibia. Subsequent VA examination reports found no evidence of shin splints, to include x-ray findings. Acknowledgement is given to the Veteran's assertions that he suffers from shin splints. During his July 2007 Board hearing, he testified that he was put on profile in service for right leg and knee problems. The examiner asked the Veteran if he was placed on profile for ankle and shin splints, and the Veteran indicated that he was restricted from running. He testified that he continued to have problems with shin splints after separation. He is competent in this regard to report observable symptomatology. However, the Veteran is a layperson who has not demonstrated medical knowledge, training, or experience. A laypersons is competent to diagnose a disability only if (1) the condition is simple to identify, such as a broken leg, (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, an orthopedic disorder such as shin splints requires a complex medical diagnosis which must be provided by a medical professional. In addition, a medical etiology opinion is also outside the expertise of the Veteran. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). Therefore, without a current diagnosis for right shin splints, the Veteran lacks the evidence necessary to substantiate his claim for service connection. Based on the above evidence, the Board finds that entitlement to service connection for right shin splints is not warranted. The weight of the evidence does not show that the Veteran has had a current right shin disability at any point since the time contemporary to 2004, when he filed his claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Absent a current, chronic disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, no diagnosis of any right shin disorder is shown. Therefore, the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are based upon the average impairment of earning capacity as contemplated by the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). To rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (2002). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, reasonable doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. 38 C.F.R. § 3.400 (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that the evidence of record does not establish distinct time periods in which the Veteran's left wrist disability resulted in symptoms which warrant a staged rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined. 38 C.F.R. § 4.25 (2012). However, rating the same disability or the same manifestations under various diagnoses is not allowed. 38 C.F.R. § 4.14 (2012). A claimant may not be compensated twice for the same symptomatology as that would overcompensate the claimant for the actual impairment of earning capacity" Brady v. Brown, 4 Vet. App. 203 (1993); 38 U.S.C.A. § 1155 (West 2002). If a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Assignment of a particular Diagnostic Code is dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on factors such as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When determining the severity of musculoskeletal disabilities which are at least partly rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to painful motion, limited or excess movement, weakness, incoordination, and excess fatigability, particularly during times when symptoms flare up, such as during prolonged use, and assuming those factors are not already contemplated in the applicable rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995), 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be non-compensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). The criteria for rating traumatic arthritis directs that the rating of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are not to be combined with ratings of the joint based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). The Veteran is assigned a 10 percent rating for his residuals of left wrist fracture, effective since 1976, pursuant to Diagnostic Code 5215 for limitation of wrist motion. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I (2012). Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. Limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012). The Veteran alleges his left wrist disability warrants a higher rating, even though his disability is currently assigned the maximum rating allowed by the rating schedule. After a careful review of the record and for reasons and bases expressed immediately below, the Board concludes that a rating greater than 10 percent under Diagnostic Code 5215 is not warranted. During the pendency of this appeal, the Veteran has been afforded several VA examinations to address his left wrist disability. In May 2004, the Veteran reported that his left wrist was painful, especially when using his wheelchair. He also noted that he had no feeling in his index and middle finger, and had not since his fracture in 1974. He indicated that flare-ups occurred a couple times per month, lasting from two hours to an entire day, generally precipitated by weather changes. He stated that, during flare-ups, there was no additional limitation of motion or functional impairment. There was no history of dislocation of the left wrist, and he noted that the disability did not affect his occupation or activities of daily living. The Veteran was right-hand dominant. On examination, there was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. Dorsiflexion was from 0 to 70 degrees, palmar flexion was from 0 to 60 degrees, radial deviation was from 0 to 20 degrees, and ulnar deviation was from 0 to 45 degrees on active range of motion. Passive range of motion increased palmar flexion to 70 degrees. Repetitive motion did not demonstrate weakness or an increase in pain. The Veteran was diagnosed with a partial non-united fracture of the distal radius, a fracture deformity of the navicular bone, and osteoarthritis of the interphalangeal, intercarpal, and metacarpophalangeal joints. A December 2004 VA outpatient report noted that the Veteran had pain in the left wrist. Another report, from April 2005, confirmed the diagnosis of degenerative joint disease of the left wrist. During a September 2010 VA examination, the Veteran reported giving way, instability, pain, stiffness, incoordination, and decreased speed of motion in the left wrist. Locking was denied. Also noted was deformity, warmth, and tenderness. Severe flare-ups were reported every one to two months. The examiner identified bony joint enlargement, crepitus, pain at rest, instability, weakness, and guarding of movement. Dorsiflexion was from 0 to 50 degrees, palmar flexion was from 0 to 55 degrees, radial deviation was from 0 to 10 degrees, and ulnar deviation was from 0 to 35 degrees. There was objective evidence of pain on motion. Repetitive motion did not create any additional limitation. X-rays revealed mild degenerative changes, and a healed fracture with not evidence of malunion or other abnormality. In a November 2010 addendum, the examiner noted that the Veteran reported several episodes of locking per week. It was further noted that the Veteran used a cane to walk at all times. No changes to range of motion were indicated. The examiner stated that the left wrist had a mild to severe impact on activities of daily living, and that the Veteran had problems with lifting and carrying. The most recent VA examination, conducted in June 2012, confirmed the prior diagnoses of record. The Veteran indicated that flare-ups did not result in additional limitation of left wrist function. Dorsiflexion was to 50 degrees, and palmar flexion was to 30 degrees. Pain was first observed at the end of each motion. The Veteran was able to perform three repetitions, and range of motion was unchanged. Muscle strength was 4/5, and ankylosis was not present. Based on the foregoing, the Board finds that a rating in excess of 10 percent pursuant to Diagnostic Code 5215 is not warranted. The Board recognizes the Veteran's statements in support of his claim, to include his hearing testimony, and the medical evidence which demonstrates at least some impairment of left wrist function. The Veteran's left wrist disability is manifested by subjective complaints of pain, weakness, stiffness, giving way, and locking, including limited gripping and lifting, and decreased motion. As to the Veteran's 10 percent rating under Diagnostic Code 5215, multiple VA examinations have shown slightly decreased ranges of dorsiflexion and palmar flexion. However, the Veteran's observed range of motion of the left wrist does not warrant a compensable rating under the criteria of Diagnostic Code 5215, as he does not have limitation of dorsiflexion of less than 15 degrees or palmar flexion limited in line with the forearm. The Board recognizes that each examiner found that joint function was additionally limited by pain, fatigue, weakness, and lack of endurance; and that x-ray evidence demonstrated degenerative arthritis. However, the Veteran's range of motion still is not sufficient to warrant a compensable rating under Diagnostic Code 5215. Thus, the current 10 percent rating under Diagnostic Code 5215 is an attempt to compensate the Veteran for his functional loss pursuant to Diagnostic Code 5010, with consideration of additional functional loss due to painful motion and other factors. That is the highest rating available under Diagnostic Code 5215. Looking to other applicable codes, the Veteran is not entitled to an increased rating pursuant to Diagnostic Code 5214, as ankylosis of the wrist has not been demonstrated at any time during the appellate period. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected disability, to include his July 2007 Board hearing testimony. At that time, he testified that he was unable to use his wrist due to the pain, and that it was difficult to move in his wheelchair for that reason. He stated that the pain was like a throbbing needle. He also indicated that his left wrist swelled and got hot. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such experiencing pain in wrist and decreased range of motion. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of his disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have and the types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by the VA examiners are afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to the opinions are within the province of the Board as adjudicator. The Board finds that the findings and opinions and objective determinations provided by the VA examiners of record should be afforded the greater probative weight. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately considered and compensated by the schedular criteria. Without sufficient evidence showing 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 extraschedular rating is not warranted. The evidence also does not show frequent hospitalization or marked interference with employment. Thun v. Peake, 22 Vet. App. 111 (2008). In adjudicating the current appeal for a higher rating, the Board finds that the preponderance of the evidence is against the Veteran's claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right leg shin splints is denied. Entitlement to an increased rating for residuals of a left wrist fracture, currently rated 10 percent, is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs