Citation Nr: 1433985 Decision Date: 07/30/14 Archive Date: 08/04/14 DOCKET NO. 11-27 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right shin splint status post tibia stress fracture. 2. Entitlement to an initial rating in excess of 10 percent for left shin splint status post tibia stress fracture. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from March 1994 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009, June 2010 and August 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record located on Virtual VA. FINDINGS OF FACT 1. At no time during the appeal period did the Veteran's right shin splint disability approximate a greater than slight knee or ankle disability. 2. At no time during the appeal period did the Veteran's left shin splint disability approximate a greater than slight knee or ankle disability. 3. The evidence of record does not show that the Veteran's service-connected shin splint disabilities are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 4. The Veteran is not unemployable due to his right and/or left shin splint disability. CONCLUSIONS OF LAW 1. Entitlement to an initial rating in excess of 10 percent for right shin splint status post tibia stress fracture is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Codes 5003, 5024, 5256-5263 (2013). 2. Entitlement to an initial rating in excess of 10 percent for left shin splint status post tibia stress fracture is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Codes 5003, 5024, 5256-5263 (2013). 3. The criteria for an extraschedular rating are not met. 38 C.F.R. §§ 3.321 (2013). 4. The criteria for a total disability rating based on individual unemployability are not met. 38 C.F.R. §§ 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The Veteran's appeal arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted and the claim is substantiated, additional VCAA notice is not required, and any defect in that notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran received an examination in connection with his claims in October 2008, prior to his separation from service, as part of the Benefits Delivery and Discharge program. Additionally, VA conducted examinations of the Veteran in April 2010 and December 2011. These examinations evaluated the nature, extent and severity of his service-connected disabilities by conducting complete physical examinations, recording the Veteran's subjective complaints, and offering opinions as appropriate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Significantly, neither the Veteran nor his representative has indicated that either of his disabilities at issue on appeal has worsened since the December 2011 VA examination, nor do his medical records suggest a worsening. As such, remand is not required for a more current examination. The Veteran waived his right to a hearing before the Board. See November 2011 Form 9. The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide his claim for an increased initial rating, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this issue. As such, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim for an increased initial rating. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Higher Initial Ratings The Veteran seeks disability ratings in excess of 10 percent for his bilateral shin splints status post tibia stress fracture. He was granted service connection for these disabilities effective May 29, 2009, and assigned initial 0 percent ratings under Diagnostic Code 5262, which governs impairment of the tibia and fibula. An August 2011 rating decision applied the same diagnostic code to increase the Veteran's evaluations to 10 percent disabling for each extremity, effective May 29, 2009 (the date of service connection). The Veteran contends that his disability rating should be at least 20 percent for each of his lower extremities, in line with the January 2009 findings and recommended disposition of the US Air Force Physical Evaluation Board. See November 2010 Notice of Disagreement (NOD); see also November 2011 Form 9. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Shin splints are not listed as specific disabilities under the VA's Rating Schedule. Where VA's Rating Schedule does not list the specific disability being rated, the disability is rated under criteria where the functions affected, anatomical localization, and symptomatology are analogous. 38 C.F.R. § 4.20. Moreover, such an unlisted disease or injury is rated by analogy under a diagnostic code built up using the first two digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last two digits. Hyphenated diagnostic codes will be used where a disability is rated on the basis of its residuals. 38 C.F.R. § 4.27. Here, the Veteran's service-connected bilateral shin splints are most closely analogous to the impairment of the tibia and fibula under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Those disabilities have been assigned separate 10 percent ratings pursuant to Diagnostic Code 5299-5262. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the issue on appeal. 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. Gonzalez 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 will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Relevant Evidence During his service in the Air Force, the Veteran was treated over the course of several years for recurrent stress fractures of both shinbones, right more than left. See May 2005 Endocrinology Medical Record; see also May 2008 Medical Record. Additionally, his history is significant for persistent bilateral lower posterolateral shin pain with walking and other activity. See May 2008 Medical Record. In the years prior to his separation from service, the Veteran remained on profile and was advised to refrain from running, jumping and lifting more than 40 pounds. During this time he was assigned to light duty, which he tolerated. See April 2012 Medical Record. In 2009, the Veteran was medically retired from service due to his inability to perform physical activity. See id. The Veteran also underwent multiple examinations in connection with his compensation claim for bilateral shin pain, both prior to separation from service in October 2008, and after separation in April 2010 and December 2010. At all times during the appeal period, the Veteran has displayed normal range of motion in his knee, with no ankylosis, subluxation, instability, or genu recurvatum. See October 2008 Examination Report; see also April 2010 & December 2011 VA Examination Reports. Likewise, the Veteran has not had dislocation or removal of his semilunar cartilage (menisci). The Veteran has not been diagnosed with degenerative or traumatic arthritis. At no time during the appeal period has he used an assistive device to walk. During his October 2008 examination, the Veteran was diagnosed with shin splints bilaterally. See October 2008 Examination Report. The 2008 examiner noted that the Veteran exhibited shin pain and tenderness, but that his x-rays were normal. The examiner noted a normal examination of the Veteran's feet, with no callosities or abnormal shoe wear. According to the October 2008 examiner's report, the Veteran reported constant aching, sharp and cramping pain in his shins that traveled up and down his whole lower leg. The Veteran rated this pain as a five out of ten. He stated that the pain could be elicited by physical activity and stress, and alleviated with Motrin. The Veteran further reported functional impairments in that he could not do any physical work. On physical examination, the examiner found no signs of edema, effusion, weakness, tenderness, redness, heat, locking pain or guarding of movement in either knee. After his separation from service, the Veteran underwent two more VA examinations and obtained treatment for his bilateral shin condition in 2011 and 2012. The Veteran reported that he did not seek treatment earlier because he was told that nothing more could be done. See April 2010 VA Examination Report. During his April 2010 VA examination, the Veteran reported that he had an increase in pain since separation from service because he was more active, resulting in more frequent flares to his shin splints. The Veteran reported that he was able to walk one-third of a mile to work, which included walking up hill and upstairs, but was unable to stand for more than two hours. He reported taking Motrin a couple of times a day, which dulled the pain. He also reported "severe" flare-ups occurring three to four times a year for approximately six weeks in duration. The examiner noted functional limitation on standing and walking based on the Veteran's report that his condition limits his ability to do extended walking, which impacted his ability to taking care of his 26 acre farm. On physical examination, the April 2010 examiner noted bilateral shin tenderness and pain in the Veteran's right mid femur. The examiner also noted that the Veteran did not exhibit heat, redness, swelling, evidence of fracture, or deformity. The examiner found evidence of abnormal weight bearing exhibited by right foot callusing, but no areas of breakdown and no unusual shoe wear pattern. The Veteran received an additional VA examination of his right and left shins and knees in December 2011. The examiner noted that the Veteran's history was positive for prior diagnoses of shin splints, stress fracture, anterior tibial compartment syndrome and chronic exertional compartment syndrome, all bilaterally. During the examination, the Veteran reported experiencing flare-ups whenever he tried to walk fast or run. See December 2011 VA Examination Report. On physical examination, the Veteran exhibited normal muscle strength and no evidence of painful motion. The examiner also noted the absence of pain in either knee on palpitation, and no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted that the although the Veteran exhibited full range of motion, he did have functional loss or impairment of the right and left knees based on the contributing factors of pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. See id. The Veteran's medical records show that he received treatment from the VA for bilateral shin pain in 2011 and 2012. During a June 2011 examination by his primary doctor, the Veteran reported that his lower extremities and feet were painful and lost some range of motion because of pain after too much activity such as climbing stairs and walking more than a few blocks. He rated his leg and foot pain as seven or eight out of ten, and reported using Motrin for pain. Although a bone scan taken in 2012 showed uptake in his bilateral tibias, the Veteran's x-rays were within normal limits. See April 2012 Medical Record. Application of the Rating Criteria Based on all of the evidence of record, the Board finds that the Veteran does not qualify for a rating in excess of the 10 percent previously assigned under Diagnostic Code 5262 for either his right or left shin splint disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). The Board further finds that the Veteran is not entitled to higher initial ratings under any of the other knee and leg Diagnostic Codes (Diagnostic Codes 5256 - 5263), or the diagnostic codes for degenerative arthritis (Diagnostic Code 5003) or tenosynovitis (Diagnostic Code 5024). The Board will discuss its reasons for each finding in turn. A. Diagnostic Code 5262 As set forth above, the Veteran is currently in receipt of 10 percent left and right knee ratings pursuant to Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). Under the provisions of Diagnostic Code 5262, a 10 percent rating is available for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is available for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is for assignment for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Here, reports from the Veteran's examinations and his VA treatment records all demonstrate that the Veteran does not have a nonunion of the tibia and fibula in either leg, as his x-rays show no evidence of fracture. Moreover, the Veteran does not exhibit loose motion in the tibia and fibula of either leg, and does not require a brace. Additionally, the Veteran's disability picture does not approximate more than a slight knee or ankle disability. Throughout the appeal period, limitation of motion of the knees or ankles has not been shown, the Veteran has exhibited no subluxation or lateral movement, and demonstrated normal posture and gait. The Veteran has not used an assistive device to walk, and he has been able to complete his activities of daily living. In essence, the Veteran's bilateral shin splint disability is marked exclusively by the functional loss and/or impairment he experiences during flare-ups. As stated above, the December 2011 examiner has noted that the Veteran exhibited functional loss and/or functional impairment based on the factors of pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. See id. Similarly, the Veteran himself has reported experiencing increased pain and flare-ups when he walks long distances, attempts to run or stands for long periods of time. See id; see also April 2010 VA Examination Report. Taking these factors into consideration per 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Board finds that the Veteran's overall disability picture has most closely approximated the criteria for a 10 percent rating, bilaterally. However, even considering the foregoing DeLuca and Mitchell provisions, the above findings do not reflect a level of tibia or fibula malunion with "moderate" or "marked" knee or ankle disability, as would be required to support a higher rating of 20 percent or 30 percent under Diagnostic Code 5262. The Board notes that prior to his medical discharge from the Air Force a Physical Evaluation Board (PEB) recommended a 20 percent rating for the Veteran's right shin disability; however, the Board is not bound by the PEB's recommendation. See generally 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §3.303 (2013) (noting that the statutes and regulations pertaining to service connection and increased disability compensation are matters properly reserved to VA adjudicators). Accordingly, absent other evidence of tibia or fibula impairment, the Board finds that Diagnostic Code 5262 may not serve as a basis for increasing the Veteran's right or left shin splint disability compensation beyond the 10 percent ratings already assigned. B. Diagnostic Codes 5256 and 5257 The Board also finds the Veteran may not prevail in his claim for increased compensation under Diagnostic Codes 5256 and 5257. These diagnostic codes focus on ankylosis or movement (subluxation or lateral instability) of the knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-57. At all times relevant to this appeal the Veteran displayed normal range of motion in his knee, with no ankylosis, subluxation or instability. See October 2008 Examination Report; see also April 2010 & December 2011 VA Examination Reports. Moreover, while mindful of the tenets of DeLuca and Mitchell, the Board observes that these provisions governing functional loss have already served as the basis for the 10 percent ratings currently assigned under Diagnostic Code 5262. As such, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Codes 5256 and 5257. C. Diagnostic Codes 5003, 5024, 5260, and 5261 Diagnostic Codes 5003, 5024, 5260 and 5261 are all predicated on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5260-61. Moreover, where there is arthritis with painful motion that is not otherwise compensable under the limitation of motion codes, Diagnostic Codes 5003 and 5024 provide for a 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 & 5024, see also 38 C.F.R. § 4.59. The Board finds that the Veteran is not entitled to initial ratings higher than 10 percent disabling under any of these codes. In this regard, the Board recognizes that such codes are based on distinct symptoms and may therefore be combined with the 10 percent evaluations separately assigned under Diagnostic Code 5262. See VAOGCPREC 23-97; VAOGCPREC 9-98. Nevertheless, the clinical evidence of record reflects that the Veteran has not exhibited limitation of extension or flexion at any point during the appeal period. See October 2008 Examination Report; see also April 2010 & December 2011 VA Examination Reports. Nor has he been diagnosed with traumatic or degenerative arthritis, or tenosynovitis, in either lower extremity. As such, the application of these codes does not warrant increased initial ratings. D. Diagnostic Codes 5258, 5259 and 5263 Finally, the Board finds that the Veteran is not entitled to a greater than 10 percent disability rating under Diagnostic Codes 5258, 5259 or 5263. These codes concern disabilities that involve the removal or dislocation of the semilunar cartilage in the knee, or genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258-59 & 5263. At no time during the appeal period has the Veteran been diagnosed with genu recurvatum or dislocation of his semilunar cartilage (menisci), nor has his menisci been removed. See October 2008 Examination Report; see also April 2010 & December 2011 VA Examination Reports. See id. Thus, the Veteran is not entitled to a compensable rating under any of these diagnostic codes. E. DeLuca and Mitchell Considerations As set forth above, the Board has considered whether additional compensation is warranted for functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement under 38 C.F.R. § 4.45, in analyzing the overall level of the Veteran's right and left shin splint disability. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In doing so, the Board finds that the Veteran is entitled to 10 percent ratings for slight bilateral knee or ankle disability under Diagnostic Code 5262, rather than noncompensable ratings. Accordingly, the Board finds that the 10 percent ratings currently assigned are sufficient to account for the Veteran's right and left shin splints disabilities and that an additional rating is unwarranted. F. Staged Ratings In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disabilities at issue have not significantly changed at any point throughout the appeal period and that as such, staged ratings are unwarranted. III. Extraschedular Consideration VA must refer a claim for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). The threshold element, "an exceptional disability picture," is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that the rating criteria contemplate the Veteran's disability. Even though the Rating Schedule does not specifically address shin splints, the schedular rating criteria concerning the knee and leg reasonably contemplates the Veteran's symptomatology. The rating criteria for Diagnostic Code 5262, under which the Veteran's disabilities are rated, are broadly written in terms of "slight," "moderate," and "marked" knee impairment, and thus encompass various types of symptoms, including those exhibited by the Veteran. The rating criteria also provide for additional or more severe symptoms than currently shown by the evidence. Therefore, the Board finds that the Veteran does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted. IV. Unemployability Consideration Finally, the Board finds that the record does not support a finding that the Veteran is incapable of obtaining and maintaining substantially gainful employment due to his service connected bilateral shin splints. According to Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability (TDIU). According to his January 2012 VA medical records, the Veteran works full time as a weatherman. See January 2012 Medical Record. There is no evidence in the record, nor has the Veteran claimed, that he is unable to work as a result of either of the disabilities at issue. As such, the Board finds that there is insufficient evidence in the record to support a claim for TDIU. ORDER Entitlement to an initial rating in excess of 10 percent disabling for right shin splint status post tibia stress fracture is denied. Entitlement to an initial rating in excess of 10 percent disabling for left shin splint status post tibia stress fracture is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs