Citation Nr: 1805211 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-20 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation, an evaluation in excess of 10 percent on and after September 9, 2010, and evaluation in excess of 20 percent on and after June 26, 2017, for service-connected bilateral anterior lower extremity strains. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 1998 to February 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2009, the Board denied entitlement to service connection for bilateral shin splints. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties to vacate and remand the May 2009 Board decision. Subsequently, in November 2011 the RO granted the Veteran's claim and assigned a noncompensable evaluation effective July 29, 2005. The Board remanded the case for further development in June 2017. At that time, the issues of the Veteran's entitlement to service connection for sleep apnea and right lower extremity, involving compression of the superficial peroneal nerve were also before the Board. Following the Board's remand, the agency of original jurisdiction (AOJ) issued a rating decision in November 2017, grating service connection for the above disabilities, which constitutes a full award of the benefit sought on appeal with respect to those issues. Additionally, in the November 2017 rating decision, the AOJ increased the evaluation for the Veteran's service-connected bilateral anterior lower extremity strains to 10 percent effective September 9, 2010, and 20 percent effective June 26, 2017. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the issue has been recharacterized as reflected on the title page. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's June 2017 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). A hearing was held before the undersigned Veterans Law Judge in January 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. For the period prior to September 9, 2010, the Veteran's bilateral anterior lower extremity strains have been manifested by painful motion. 2. For the period after September 9, 2010, and prior to June 26, 2017, the Veteran's bilateral anterior lower extremity strains disability have been manifested by slight impairment of the tibia or fibula, as there is pain on exercise and exertion. 3. On and after June 26, 2017, the Veteran's bilateral anterior lower extremity strains have been manifested by moderate impairment of the tibia or fibula. The Veteran's disability manifested pain with moderate use of his legs. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for service-connected bilateral anterior lower extremity strains have been met. 38 U.S.C. § 1155, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5299-5262 (2017). 2. The criteria for an evaluation in excess of 10 percent on and after September 9, 2010, for service-connected bilateral anterior lower extremity strains have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5262 (2017). 3. The criteria for an evaluation in excess of 20 percent on and after June 26, 2017, for service-connected bilateral anterior lower extremity strains have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20 (2017). Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the bilateral anterior lower extremity strains have been rated by analogy, using the criteria for tibia and fibula impairment under Diagnostic Code 5262. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2017). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Period prior to September 9, 2010 During a January 2009 VA joints examination the Veteran stated that he developed anterior tibia pain bilaterally. He stated that he noticed the pain during periods of strenuous exercise. The Veteran's primary complaints were pain, weakness, stiffness, swelling, and instability of the tibias. He stated that those symptoms were alleviated by rest, ice, and medication. The Veteran did not require the use of a brace or an ambulatory device. He stated that he had mild difficulty with prolonged walking. However, he denied any difficulty with gentile walking, driving, toileting, grooming, or eating. The Veteran also stated that he was able to participate in basketball 3 times per week. Upon examination, the examiner found that there was no tenderness to palpitation over the anteromedial aspect of the tibia, weight-bearing activity does not increase his pain, that the knee joint is stable, and that there was no evidence of increased compartment pressure. The Veteran did not have any difficulty with heel-toe rises, or free standing squats. Repetitive motion testing did not reveal any additional limitation of motion. Tibia and fibula x-ray results were negative. The examiner opined that the Veteran had mild, if any, functional deficits due to his bilateral tibia condition. Range of motion was not tested. However, as discussed above, during the above period, the record reflects painful motion. Accordingly, at least a 10 percent rating is warranted for his bilateral anterior lower extremity strains due to his pain. 38 C.F.R. § 4.59. The minimal compensable rating available for his disability is 10 percent under DC 5262. 38 C.F.R. § 4.71a. However, the Board finds that the Veteran is not entitled to a higher rating during the appeal period. Indeed, in considering the criteria of Diagnostic Code 5262, the Board notes that the Veteran's disability is no more than slightly disabling during the above time period. Considering the results of the VA examination in light of the Veteran's overall disability picture as shown in the record, including the lay evidence of record, the disability does not more nearly approximate the criteria for the 20 percent evaluation for the above appeal period. Accordingly, the Board finds than an evaluation in excess of 10 percent is not warranted. Period from September 9, 2010 to June 26, 2017 The Veteran was afforded a September 2010 VA examination for his disability. At that examination, the examiner noted that the Veteran had pain located in his anterior tibia, and that the pain occurred during exercise and exertion. Further the examiner noted that the Veteran's shin pain had a significant impact on the Veteran's usual occupation. Additionally, the examiner noted that the Veteran had mild pain while exercising, playing sports, and performing other recreational activities. X-ray results showed no evidence of fracture, dislocation, or any other joint abnormalities. There was no finding of crepitation, clicks or snaps, instability, or abnormality in either knee or either ankle. The Veteran's knee flexion was limited to 130 degrees, and his extension was normal. The Veteran's ankle dorsiflexion was from 0 to 20 degrees and his ankle flexion was from 0 to 45 degrees. The examiner ultimately diagnosed the Veteran with bilateral lower extremity strain without symptoms. The Veteran submitted a September 2012 private examination report. At that examination, the Veteran noted that he experienced pain in both lower extremities when he exerted himself. He further reported that he had to ice both calves to relieve the pain. Moreover, he asserted that long walks and playing basketball caused him to have symptoms. He reported that the pain can be as bad as 10 out of 10. Additionally, the Veteran stated that he did not have symptoms when he was not walking or running. Upon examination, the doctor noted that the Veteran walked with a normal gait, and that the Veteran can tip-toe walk and heel walk easily. With regards to the left leg, the examiner noted that the Veteran complained of discomfort in the anteromedial distal third of the tibia, and that the Veteran complained that the discomfort radiated down toward the bony prominence of the navicular cuneiform joint. The examiner found that the Veteran had no sensory difficulties, good distal circulation, and reasonably good arch support. He further stated that, the Veteran is minimally tight in the Achilles bilaterally and with his knee flexion, and that the Veteran dorsiflexion was limited to 10 degrees above neutral with his knees extended 5 degrees above neutral. Ultimately, the examiner found that the right lower extremity symptoms are due to compression of the superficial peroneal nerve at the fascia hiatus. He stated that the symptoms in the left lower extremity are vague and unable to be measured. Similarly, at an April 2014 peripheral nerves examination, the Veteran stated that he gets pain in his shins when he exercises, walks about 500 to 1000 feet, or runs fast. The examiner attributed the Veteran's pain to peripheral nerve conditions. Specifically, the examiner stated that the Veteran had mild constant pain in his right lower extremity and moderate intermittent pain in the same extremity. On examination, the Veteran's right knee extension was normal, and the Veteran's bilateral ankle plantar flexion and dorsiflexion was normal. The Board notes that both the September 2012 private examination report and the April 2014 VA examination appear to attribute the Veteran's symptoms to a separate disability. Nevertheless, the Board finds the Veteran's reported symptomatology helpful in deciding the issue currently on appeal. During a January 2017 hearing, the Veteran testified that he does go to the gym, and tries to walk on the treadmill. See Bd. Hrg. Tr. at 25. He further stated that he had to ice his legs and take medication to ease the pain. Id. Moreover the Veteran testified that he does not normally seek treatment for his disability. Id. In considering the criteria of Diagnostic Code 5262, the Board notes that the Veteran's bilateral anterior lower extremity strain is no more than slightly disabling during the above time period. The Board also notes that the Veteran is already in receipt of separate ratings for right lower extremity, involving compression of the superficial peroneal nerve. Considering the results of the VA examinations in light of the Veteran's overall disability picture as shown in the record, including the lay evidence of record, the disability does not more nearly approximate the criteria for the 20 percent evaluation. Accordingly, the Board finds than an evaluation in excess of 10 percent is not warranted. Period on and after June 26, 2017 The Veteran was afforded a June 2017 VA examination. At that examination, the Veteran noted that he does not have pain while resting, but does report pain with moderate use of his legs. In that regard, the Veteran stated that he has to take a break after 10 minutes of continuous walking. On examination, the Veteran's range of motion for his knees were normal; however, the examiner found that the Veteran had objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner stated that the severity of the tenderness or pain was moderate, and that it was consistent with the Veteran's bilateral shin splints. Indeed the examiner stated that the Veteran has pain and weakness associated with his disability. Notably, the examiner stated that the shin splints do not affect the range of motion for the Veteran's knee or ankle. The examiner noted that the Veteran does not use a brace. Additionally, he stated that the Veteran does not have any additional functional impairment noted during flare-ups and repetitive motion. In considering the criteria of Diagnostic Code 5262, the Board finds that the Veteran's disability is no more than moderately disabling during the above time period. Considering the results of the VA examinations in light of the Veteran's overall disability picture as shown in the record, including the lay evidence of record as well as the reported flare-ups with pain, the disability does not more nearly approximate the criteria for the 30 percent evaluation. Accordingly, the Board finds than an evaluation in excess of 20 percent is not warranted. The Board finds that the evidence does not support a separate rating for any other Diagnostic Code throughout the entire period on appeal related to the Veteran's bilateral anterior lower extremity strains. Indeed, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Moreover, the Board notes that that no other diagnostic codes provide a basis for any higher or additional ratings for the Veteran's bilateral anterior lower extremity strains. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). ORDER Entitlement to an initial compensable evaluation for service-connected bilateral anterior lower extremity strains is granted. Entitlement to an evaluation in excess of 10 percent for service-connected bilateral anterior lower extremity strains on and after September 9, 2010 and prior to June 26, 2017 is denied. Entitlement to an evaluation in excess of 20 percent on and after June 26, 2017, for service-connected bilateral anterior lower extremity strains is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs