Citation Nr: 1325694 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 11-04 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for bilateral shin splints. 2. Entitlement to service connection for a bilateral lower leg condition, other than shin splints, to include left knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Ocean County Veterans Service Bureau ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 2007 to July 2008. The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Although the Veteran has referred to her disability as shin splints, the evidence of record shows a diagnosis of patellofemoral syndrome. As a result, the issue on appeal has been re-characterized on the title page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The most persuasive evidence of record establishes that the Veteran does not have bilateral shin splints. 2. Left knee patellofemoral syndrome had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral shin splints have not been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for left knee patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in June 2009 prior to the initial rating decision. This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements have been associated with the file. The Board notes that the Veteran's service treatment records (STRs) are unavailable, as the RO made a Formal Finding on the Unavailability of Federal Records in February 2010. Also in February 2010, the Veteran was notified of the unavailability of her service treatment records and the steps the RO took in order to obtain those records. The Veteran was also notified of alternative records that could be used in lieu of service treatment records. To this date the Veteran has not submitted any such records. The Board is mindful that, in a case such as this, VA has a heightened obligation to assist the Veteran in the development of her claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Additionally, the Veteran was provided with a VA examination in July 2009. The Board finds that the VA examination report was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history and lay statements, and described the Veteran's leg conditions in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). The Board does point out, however, that in Walker v. Shinseki, 708 F.3d 1331 (2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Shin splints and patellofemoral syndrome are not listed under § 3.309(a) and therefore evidence of continuity of symptomatology cannot be used to establish service connection in this case. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Background The Veteran contends that her bilateral lower leg condition is related to service. On her June 2009 claim, the Veteran reported that she began to suffer from shin splints during basic training but "toughed it out". She reported that while stationed in Korea, wear and tear from twice a day physical training exacerbated the problem. The Veteran also reported that she went to the camp clinic several times and was finally sent to a civilian hospital in Korea for scans. The Veteran was afforded a VA examination in July 2009. The Veteran reported that she developed bilateral leg pain in January 2007 during basic training. The Veteran reported that she was placed on a profile and had a bone scan done at the time. She reported that the bone scan revealed evidence of shin splints and minor fracture of the tibiofibular area. The Veteran stated that she occasionally experienced pain in the right leg but had no pain the day of the examination. The Veteran stated that she had intermittent pain in the left knee and left shin. The Veteran reported that the pain was worse in the knee and that the pain was aggravated by walking and running and prolonged standing. X-rays of the left knee revealed no evidence of a fracture or dislocation. The osseous structures were unremarkable, the knee joint was well maintained, and the soft tissue appeared normal. X-rays of the left tibia and fibula revealed no evidence of a fracture or dislocation. There was well-defined ossific density adjacent to the tip of the lateral malleolus. The remaining visualized osseous structures were unremarkable and the soft tissues were unremarkable. The VA examiner found the right lower extremity to be unremarkable and diagnosed left knee patellofemoral syndrome with no evidence of shins splints. Bilateral Shin Splints The Board finds that the evidence of record does not contain a current diagnosis of bilateral shin splints. The Board acknowledges the Veteran's assertions that she suffered from and was treated for bilateral shin splints in service. The Board notes that the Veteran is competent to relate a history of symptoms and treatment in service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also finds these statements to be credible in the absence of any countervailing evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). However, the Veteran is not competent to provide a current diagnosis of bilateral shin splints. In this case, an orthopedic disorder such as shin splints requires a complex medical diagnosis which must be provided by a medical professional. The Veteran is a layperson who has not demonstrated medical knowledge, training, or experience. Furthermore, the July 2009 VA examiner, who is an orthopedist, found no evidence of shin splints. The VA examiner fully examined the Veteran, reviewed the Veteran's X-rays, and considered the Veteran's lay assertions. As such, the Board assigns greater probative value to the VA examiner's findings that there was no evidence of bilateral shin splints. As such, service connection for bilateral shin splints is not warranted. Left Knee Patellofemoral Syndrome The Veteran was discharged from service in July 2008 and within a year filed a claim for her lower leg pain. The July 2009 VA examiner diagnosed left knee patellofemoral syndrome. However, no nexus opinion was provided. The Veteran contends that her lower legs have been painful since service. She also reported that she has intermittent pain in her left leg, particularly her left knee. The Veteran has not asserted that one incident of service has caused her knee pain; rather she reported continual stress on the joints from basic training and two a day workouts. As noted, the Veteran is competent to report the onset of her symptoms. The Board finds that the Veteran's testimony of painful lower legs, particularly her left knee, since service is credible. Given these credible assertions, along with the diagnosis of left knee patellofemoral syndrome relatively proximate to service discharge, the Board finds that the totality of the evidence supports finding the Veteran's left knee patellofemoral syndrome is associated with events that occurred during service. Thus, the required nexus is met. For these reasons, and in resolving all doubt in the Veteran's favor, the competent and probative evidence shows that she is entitled to service connection for left knee patellofemoral syndrome. In reaching this conclusion, the Board has applied the benefit- of-the-doubt doctrine. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for bilateral shin splints is denied. Entitlement to service connection for left knee patellofemoral syndrome is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs