Citation Nr: 18158956
Decision Date: 12/18/18	Archive Date: 12/18/18

DOCKET NO. 12-26 521
DATE:	December 18, 2018
ORDER
A 10 percent rating, but not higher, for left shin splints, is granted.
A 10 percent rating, but not higher, for right shin splints, is granted.
Service connection for a low back condition is denied.
FINDINGS OF FACT
1. The Veteran's left shin splints are manifested by pain that results in functional loss; however, the preponderance of the competent medical evidence is against a finding that they are manifested by moderate knee or ankle disability.
2. The Veteran's right shin splints are manifested by pain that results in functional loss; however, the preponderance of the competent medical evidence is against a finding that they are manifested by moderate knee or ankle disability.
3. The preponderance of the competent medical evidence is against a finding that the Veteran has a low back condition that is associated with his service. 
CONCLUSIONS OF LAW
1. The criteria for an initial rating of 10 percent, but no higher, for left shin splints have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2017).
2. The criteria for an initial rating of 10 percent, but no higher, for right shin splints have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2017).
3. The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1999 to January 2005. He served under honorable conditions in the United States Air Force. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2011 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The May 2011 decision denied service connection for a low back condition and the August 2012 decision assigned an initial noncompensable rating for left and right shin splints. This matter was previously before the Board in August 2017 when it was remanded for further development, to include so that the Veteran could be afforded an initial VA examination for his low back condition as well as for an updated VA examination responsive to evidence that his bilateral shin splints had worsened. At the time of the prior Board remand, this appeal also included claims for service connection for a bilateral foot disability and a skin disability; however, in May 2018 the RO granted both claims. Accordingly, as there remains no case or controversy for the Board to resolve regarding the bilateral foot and skin claims, they are not for consideration here. Since this matter was last before the Board in August 2017, it has been reassigned to the undersigned Veterans Law Judge. 
1. Entitlement to an initial compensable rating for left and right shin splints
VA assigns an initial percentage rating for a disability by comparing a veteran’s history with that disability from the date of service connection against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran’s symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the veteran’s condition, the law, and medical knowledge. See id. § 4.1. 
Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. See id. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Further, although using symptoms from a nonservice connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). 
In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when a veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal.
Additional reference to the Veteran’s disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision.
For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).
Here, the Veteran appeals for a higher evaluation for his service-connected left and right shin splints currently rated noncompensable by analogy under DC 5299-5262. DC 5262 contemplates impairment of the tibia and fibula and provides a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as “slight,” “moderate,” “severe,” and “marked” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just” as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Further, the Board is not bound by a clinician’s use of a term.
The Board has also considered the applicability of 38 C.F.R. § 4.59. In Correia v. McDonald, the U.S. Court of Appeals for Veterans Claims noted that § 4.59 concerns painful motion of the musculoskeletal system generally. Correia v. McDonald, 28 Vet. App. 158, 165 (2016). The Court has further found that the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).
The Board has considered 38 C.F.R. § 4.59 in evaluating the Veteran's left and right shin splint disabilities and finds that the requirements for entitlement to the minimum compensable rating under 38 C.F.R. § 4.59 are met. The evidence shows that the pain reported in the context of the Veteran's shin splints throughout the appeal period results in functional impairment.
Pursuant to the April 2012 VA examination, the Veteran reported pain when running, which he reported he avoids, and pain with walking only when carrying a heavy load. The examiner opined that there was no occupational impairment due to his shin splints but noted mild tenderness to anterior mid tibia bilaterally.  In his June 2014 substantive appeal, he reiterated that he is unable to run and indicated he told the examiner he has pain while walking without carrying additional weight. At that time, he also stated that he could not stand or walk for long periods of time due to pain.
Pursuant to the August 2017 VA examination report, the Veteran has a diagnosis of bilateral shin splints (including tibia and/or fibula stress fracture and/or exertional compartment syndrome). The examiner opined that as a result the Veteran has occupational impairment in the form of difficulty with jobs requiring climbing stairs and prolonged walking. The examiner also noted disturbance of locomotion, objective evidence of localized knee tenderness or pain on palpation, pain on knee flexion, extension, and weight-bearing, and repetitive use testing was not possible due to pain. Consistent with the examiner’s own determinations, the Veteran reported knee pain when walking, including at an incline, and climbing stairs. He also reported taking Tramadol for knee and lower leg pain associated with his shin splints. Based on consideration of all the evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that his left and right shin splints are manifested by symptoms analogous to a 10 percent rating under DC 5262. Accordingly, a higher rating is granted. 
At the same time, the Board finds that the preponderance of the competent medical evidence is against granting a higher 20 percent rating analogous to moderate knee or ankle disability. The 2017 examiner opined that range of motion of the knee was normal even with some pain (except for the above-noted repetitive use testing), imaging studies revealed no arthritis, and the Veteran does not use any assistive devices. The Board also finds that although the examiner opined that the Veteran has occupational limitations due to his shin splints, difficulty with jobs requiring climbing stairs and prolonged walking represents at most a slight impairment that is more closely approximated by the criteria for a 10 percent rating. Accordingly, based on consideration of all the competent medical evidence, a 20 percent rating is not warranted.
To the extent the Veteran has associated his symptoms with a foot condition, the Board notes that in May 2018 service connection for bilateral plantar fasciitis was granted. See 38 C.F.R. § 4.14. 
2. Entitlement to service connection for a low back condition
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2017); 38 C.F.R. § 3.303 (a) (2017). Generally, in order to prove direct service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Pursuant to the August 2017 VA examination report, the Veteran does not have a diagnosed low back condition; however, the examiner opined that he has occupational impairment surrounding jobs that require prolonged sitting, walking, and heavy lifting consistent with the Veteran’s reported symptoms and the examiner noted objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that he has a current disability to the extent that further analysis of his claim is warranted. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).
Turning to the question of whether there is a nexus, or link, between the Veteran’s low back disability and his service, the Board concludes that the preponderance of the competent medical evidence is against such a finding. The August 2017 VA examiner opined that it is less likely than not that the Veteran has a low back condition associated with his service. The examiner’s opinion was supported by rationale, to include consideration of the Veteran’s medical history during the years between his service and the present in-person examination. Consistently, the Board finds that the Veteran’s service treatment records (STRs) indicate treatment for a shoulder injury but not back pain in connection with a wrestling accident in March 2001. The August 2017 VA examination report shows the Veteran reported being given Motrin in-service for low back pain, but his STRs, to include dated March 2001, show that it was for a right shoulder sprain. In a February 2003 report of medical history, the Veteran affirmatively denied experiencing recurrent back pain. In December 2004 for the purposes of separation, the Veteran only listed shin splints and dental problems as being relevant health conditions and he affirmatively indicated that there were no other injuries sustained on active duty 
 
for which he did not seek medical care. Accordingly, as the preponderance of the competent medical evidence is against the claim, service connection for a low back condition is not warranted. 

 
M. C. GRAHAM
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Fales, Associate Counsel