Citation Nr: 1327428 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 05-03 245A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected right shin splints. 2. Entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder, associated with service-connected right shin splints. 3. Entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints. 4. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected right shin splints. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served from April 29, 1988, to October 5, 1988, when she was relieved from her initial active duty training. This case comes from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico and St. Petersburg, Florida. A May 2004 rating decision granted service connection for right shin splints at an initial noncompensable disability rating, and denied service connection for a low back condition. A July 2005 rating decision, in pertinent part, granted service connection for depressive disorder and assigned an initial 30 percent disability rating. The July 2005 rating decision also denied the Veteran's claims of entitlement to service connection for degenerative joint disease of the right hip; degenerative joint disease of the right knee; lumbar paraspinal myositis, degenerative joint disease without herniation, right sacroiliitis; diabetes mellitus; and exogenous obesity, each to include as secondary to service-connected right shin splints. An August 2006 rating decision denied the Veteran's claim of entitlement to a total disability due to individual unemployability (TDIU). In June 2007, the Veteran and her spouse testified before the undersigned Veterans Law Judge, seated at the RO in San Juan, Puerto Rico. A transcript of the hearing has been associated with the claims file. In July 2008, the Board remanded this case for additional development. An April 2009 rating decision granted the Veteran's claims of entitlement to service connection for degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; and trochanteric bursitis, right hip, each to include as secondary to service-connected right shin splints, as well as a TDIU. Thus, the RO's April 2009 action represents a full grant of the benefits sought as to those claims and the Board will confine its consideration to the issues set forth on the decision title page. In an August 2011 decision, the Board again remanded these issues for additional development. In an October 2012 rating decision, the RO granted a higher disability rating of 70 percent for service-connected depressive disorder, effective February 1, 2005. As a higher schedular evaluation for this disability is possible, the issue of entitlement to an initial rating in excess of 70 percent remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or on account of being housebound has been raised by the record, specifically, by the Veteran's March 2011 claim. However, the AOJ has not had the opportunity to adjudicate the issue. Therefore, the Board does not have jurisdiction over the issue, and it is again referred to the AOJ for appropriate action. The issue of entitlement to service connection for diabetes mellitus, to include as secondary to service-connected right shin splints is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected right shin splints are manifested by subjective complaints of pain without evidence of loss of muscle strength, function, or substance; moderate impairment of Muscle Group XII is not shown. 2. In December 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal as to entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder was requested. 3. In December 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal as to entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints was requested. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for right shin splints have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.20, 4.56, 4.71a, Diagnostic Codes 5399-5312 (2012). 2. The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder by the Veteran have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints by the Veteran have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS 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 the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" 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 articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran notice in a May 2005 letter, prior to the rating decision on appeal. The Board acknowledges that the Veteran has not been provided notice with respect to the effective date element of the claim. As explained below, the Board has determined that an increased rating is not warranted for the Veteran's right shin splints. Therefore, no effective date for a higher rating will be assigned, and the failure to provide notice concerning the effective-date element of the claim was no more than harmless error. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal. VA obtained all relevant medical treatment records identified by the Veteran. VA further afforded the Veteran appropriate VA medical examinations in May 2004, May 2005, October 2008 and October 2011 for her right shin splints. The Board finds that the examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate her claim; the Board is also unaware of any such evidence. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing her claim when her disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40 (2012). The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the 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. See 38 C.F.R. § 4.59 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this case, the Veteran's service-connected right shin splints are rated under Diagnostic Codes 5399-5312. Diagnostic code 5399 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.73. The hyphenated diagnostic code in this case indicates that the Veteran's right shin splints disability is rated as analogous to impairment of Muscle Group XII under 38 C.F.R. § 4.7, Diagnostic Code 5312. Functions of this muscle group include dorsiflexion, extension of the toes, and stabilization of the arch. This muscle group encompasses the anterior muscles of the leg, including the tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius muscles. Under this diagnostic code 5312, a 0 percent disability rating is warranted where the disability is slight. A 10 percent disability rating is warranted for moderate disability. A 20 percent rating is warranted for moderately severe disability and a maximum 30 percent disability rating is warranted for severe disability. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56 (c). Under 38 C.F.R. § 4.56 (d), disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. Slight disability of muscles is characterized by simple wound of muscle without debridement or infection. Slight disability of muscle is reflected by history and complaint such as service department records of a superficial wound with brief treatment and return to duty. Healing of slight muscle injuries is followed by good functional results. Slight disability of muscles includes none of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. 4.56 (c). Objective findings characteristic of slight muscle disability include minimal scarring, no evidence of facial defect, atrophy, or impaired tonus, no impairment of function, and no metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (d) (1). Moderate disability of muscles is characterized by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. History and complaint characteristic of moderate disability of muscle includes service department records or other evidence of in-service treatment for the wound. For a finding of moderate disability of muscle, there should be a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c), particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings characteristic of moderate muscle disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue. For moderate muscle injury, there should be some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d) (2). Moderately severe disability of muscles is characterized by a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaint characteristic of moderately severe muscle injury includes service department records or other evidence showing hospitalization for a prolonged period for treatment of wound. A showing of moderately severe muscle disability should include a record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c) and, if present, evidence of inability to keep up with work requirements. Objective findings characteristic of moderately severe muscle disability include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side are also indicative of moderately severe muscle disability. Tests of strength and endurance compared with the sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d) (3). Severe disability of muscles is characterized by a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaint characteristic of severe disability of muscle includes service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings characteristic of severe muscle disability include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d) (4). Factual Background and Analysis A June 1988 service treatment record noted that the Veteran had tenderness to her shins for the past 3 weeks. The diagnosis was shin splints. The Veteran underwent a VA examination in May 2004. She reported that during her basic training, she developed shin splints in her right leg. She remained in the military and had numerous instances where she was out of duty due to her shin splints. She was treated with antiinflammatories and rest. On examination, her shin showed tenderness to palpitation along the crest of the tibia, but no objective findings. X-rays of the right tibula and fibula were normal. The Veteran was assessed with a history of shin splints in the military with the subsequent development of right-sided low back pain and right knee pain by the Veteran's report. The examiner noted that the Veteran had "little if any signs of her claims". The examiner did feel that the Veteran's shin splints were real in the military as shin splints are a very common complaint in the military. However, the examiner noted that shin splints in his experience virtually always get better with rest and any discomfort in the low back region or knee region usually gets better as well. A January 2005 Social Security Evaluation interview noted that the Veteran presented with complaints of right leg pain since 1988 when she developed a right leg stress fracture. No shin pain was reported on the examination as the physician noted that the Veteran's main complaints involved her knee and back pain. The Veteran underwent a VA examination in May 2005. The examiner noted that the Veteran suffered a stress fracture with a shin splint on her right tibia which was treated with a leg cast and required the use of crutches. Her complaints and physical examination findings on the examination were exclusively related to her right knee and right hip disabilities. The diagnosis was right shins splints, right hip degenerative joint disease and mild degenerative joint disease of the right knee. The Veteran underwent a VA examination in October 2008. It was noted that the Veteran had treatment for her right shin splints on several occasions. She presented with symptoms of chronic pain in her right lower extremity. She was treated with ocxycodone twice a day with some relief. Her flare-ups were variable and she could not specify the details. She had some increased pain and additional limitation during her flare-ups. She used a brace and a straight cane. She was able to ambulate with a cane for up to 1 to 1.5 blocks. She needed help from her husband for dressing and showers. She had been unemployed since 2003. On examination, there was tenderness of the right mid-shin area. She ambulated with a straight cane with right lower extremity derotational brace in place, with slow, sometime antalgic gait. A bone scan in August 1988 demonstrated focal minimal increased osteoblastic activity at the mid-shaft of the right tibia. However, current x-rays of the right tibia/fibula were within normal limits. The diagnosis was old stress fracture, right mid-tibia with residual shin splints. Per the August 2011 remand instructions, the Veteran underwent a VA examination in October 2011. The examiner noted that the Veteran has had a diagnosis of tibialis tendinitis (shin splints). The onset of her shin splints occurred in basic training as the Veteran recalled a stress fracture on her right leg which required the use of a cane for 3 months. She reported no flare-ups. The examiner noted that a bilateral lower leg x-ray revealed an essentially normal bilateral study with very subtle cortical thickening of the proximal right tibia which may be the site of an old stress fracture. The examiner also noted that "the shin splints to her right leg, for which she is originally service connected, have long since resolved with rest". The pain that the Veteran had in both legs on any formal examination with the lightest touch was nonanatomic and did not stem from the shin splints. The examiner concluded that the "pain most likely originates from her fibromyalgia". Upon review of the evidence of record in this case, the Board finds that an initial compensable rating is not warranted for the service-connected right shin splints. The Veteran's service-connected right shin splints are currently rated at 0 percent pursuant to 38 C.F.R. §4.71a, DCs 5399-5312, for slight impairment of Muscle Group XII. The next highest rating is 10 percent and requires evidence of moderate impairment of Muscle Group XII. Based on the record, the Board finds that the Veteran's service-connected right shin splints have not resulted in moderate impairment of Muscle Group XII. In this respect, although there are complaints of pain, there is no indication in the treatment records of a through and through or deep penetrating wound, residuals of debridement, or prolonged infection. Moreover, examinations of the right lower extremity have not revealed consistent complaint of any of the cardinal signs and symptoms of muscle disability as set forth in 38 C.F.R. § 4.56(c). Rather, the findings reported on VA examinations in May 2004, May 2005, October 2008 and October 2011 do not reflect actual functional impairment of the muscle and the subjective complaints of pain would support no more than a finding of slight muscle disability. As indicated, the limited function in the Veteran's right lower extremity knee and ankle (which require the use of a cane), are not related to the service-connected shin splints, but rather her service-connected back, right knee and right hip disabilities. Nothing in the record indicates that there has been any loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue. Significantly, it appears that the Veteran's service-connected bilateral shin splints are asymptomatic as the October 2011 VA examiner specifically noted that the Veteran's right shin splints "have long since resolved with rest" as any current pain most likely originates from her nonservice-connected fibromyalgia. Accordingly, the criteria for a higher, compensable rating under Diagnostic Codes 5399-5312 have not been met. The Board has considered whether the Veteran is entitled to a higher rating under any alternative diagnostic codes, including 5260 through 5262 (limitation of leg flexion; limitation of leg extension; and impairment of the tibia and fibula); and 5271 (limited motion of the ankle). See 38 C.F.R. § 4.71a Diagnostic Codes 5260-62, 5271 (2012). In this case, however, there no indication of any malunion or nonunion of the tibia and/or fibula, and no marked ankle disability that is related to the Veteran's service-connected right shin splint disabilities. Additionally, the Veteran is already service-connected for a right knee disability associated with shin splints under Diagnostic Code 5261. Hence, these diagnostic codes cannot serve as a basis for a higher rating for the Veteran's service-connected right shin splints disability. The Board further notes that the Veteran contends, in essence, that her right shin disability is manifested by pain with secondary limitation of joint motion. As noted above, in DeLuca, supra, the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Board notes that the provisions of 38 C.F.R. §§ 4.40 and 4.45 should be considered in conjunction only with a diagnostic code predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, in this case, the evidence shows the Veteran has not had any painful motion or functional loss due to her service-connected right shin splints during the appeal period under review. Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however, there is no basis for staged ratings pursuant to Hart. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has also considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected right shin splints. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of her service-connected right shin splints disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. II. Entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder, associated with service-connected right shin splints and entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran had pending claims for entitlement an initial disability rating in excess of 70 percent for service-connected depressive disorder, associated with service-connected right shin splints and entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints. However, in a letter submitted by his representative in December 2012, the Veteran indicated that she wished to withdraw her claims for a rating over t0 percent for her service-connected depressive disorder and herservice connection claim for a right low back/gluteus disability. Therefore, the appeals for the claims for entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder, associated with service-connected right shin splints and entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints, are deemed withdrawn. See 38 C.F.R. § 20.204. The Veteran has withdrawn the appeals of entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder and entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review theses appeals and they are dismissed. ORDER Entitlement to an initial compensable disability rating for service-connected right shin splints is denied. Entitlement to an initial disability rating in excess of 70 percent for service-connected depressive disorder, associated with service-connected right shin splints is dismissed. Entitlement to service connection for a right low back/gluteus disability, to include as secondary to service-connected right shin splints is dismissed. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for triggering VA's duty to provide an examination is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has alleged that she has diabetes that that has caused or aggravated as a result of her service-connected right shin splints disability. In its August 2011 remand, the Board noted that at the time of the Veteran's October 2008 VA examination, the examiner opined that the Veteran's diabetes was less likely aggravated by her service-connected disabilities. The examiner reasoned that the Veteran's blood sugars were under good control over the past several years, that she had lost over 100 pounds subsequent to her bariatric surgery, and that she was not prescribed any psychotropic medication known to impair glucose tolerance. The examiner also noted the Veteran's obesity and opined that lack of exercise secondary to her service-connected right shin splints and multiple joint problems was one of the factors that contributed to such. The Board noted, however, that the question remained as to whether the Veteran's multiple service-connected musculoskeletal disabilities, presently including her right shins, degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; and trochanteric bursitis, right hip, prevented the Veteran from exercising and thus contributed to her diabetes, or if such lack of exercise contributed to obesity which contributed to diabetes. As a result, the Board requested the RO to undergo an additional VA examination to, in part, specifically to address whether the Veteran's service-connected right shin splints; degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; and/or trochanteric bursitis, right hip, aggravated her nonservice-connected diabetes mellitus beyond the natural progression of the disease. Per the remand orders, the Veteran underwent a VA examination in October 2011. The VA examiner noted that the Veteran's service-connected musculoskeletal conditions "certainly in part contributed to her obesity and diabetes by impeding her ability to exercise." However, the examiner indicated that he was unwilling to endorse a contention that these service-connected musculoskeletal conditions bore a 50/50 or an at least as likely as not responsibility. The examiner noted that the Veteran's risk factors for obesity and diabetes also included inactivity exacerbated by her depression and fibromyalgia. The examiner concluded that the Veteran's non-service connected fibromyalgia bore more responsibility for the Veteran's obesity and subsequent diabetes than her service-connected musculoskeletal conditions. The Board notes that the VA examiner seemingly provides a negative nexus opinion regarding whether the Veteran's service-connected disabilities caused or aggravated her diabetes mellitus beyond the natural progression of the disease. However, the examiner specified that the non-service connected fibromyalgia was more responsible for the diabetes in comparison with only the Veteran's service-connected musculoskeletal conditions. Significantly, as detailed above, the examiner noted that noted that the Veteran's risk factors for obesity and diabetes also included inactivity exacerbated by her depression and fibromyalgia. Signigicantly, the Veteran is service-connected for the musculoskeletal disabilities of right shin splints; degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; and trochanteric bursitis, right hip; and she is also service-connected for depressive disorder at a 70 percent disability rating. While the examiner noted that the Veteran's risk factors for diabetes included inactivity exacerbated by her depression, there is no opinion as to whether the Veteran's service-connected depression aggravated her nonservice-connected diabetes mellitus beyond the natural progression of the disease. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, an opinion is needed to specifically address whether the Veteran's diabetes mellitus was caused by or aggravated by the Veteran's service-connected musculoskeletal disabilities and her service-connected depression. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. The Veteran should then be afforded a VA records review. A VA physician should review the claims folder and provide an opinion as to it is at least as likely as not that the Veteran's service-connected right shin splints; degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; trochanteric bursitis, right hip, and/or depressive disorder, alone or in concert, aggravate her nonservice-connected diabetes mellitus beyond the natural progression of the disease. If aggravation is found, the examiner should identify that aspect of the disability which is due to such aggravation. In this regard the examiner must comment upon whether the Veteran's service-connected right shin splints; degenerative disc disease of the lumbosacral spine with grade 1 retrolisthesis of L2 on L3; patellofemoral pain syndrome, right knee; trochanteric bursitis, right hip, and/or depressive disorder, prevented her from exercising and thus contributed to her diabetes, or if such lack of exercise contributed to obesity which contributed to diabetes. The examiner should also address the previous October 2011 opinion which indicated that the Veteran's non-service connected fibromyalgia bore more responsibility for the Veteran's obesity and subsequent diabetes than her service-connected musculoskeletal conditions. In addressing this opinion, the examiner should also address the contribution of the Veteran's service-connected depressive disorder which the previous examiner did not account for in the October 2011 VA opinion. The claims file should be made available to the examiners for review in conjunction with the opinions or examinations, and the examiners should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiners should fully articulate a sound reasoning for all conclusions made. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs