Citation Nr: 1808580 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-18 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating higher than 10 percent prior to July 20, 2011, and higher than 20 percent since, for left lower extremity shin splints. 2. Entitlement to an initial rating higher than 10 percent prior to July 20, 2011, and higher than 20 percent since, for right lower extremity shin splints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 2006 to July 2007. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral (i.e., left and right leg) shin splints and assigned an initial 0 percent, so noncompensable, evaluation. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (In this circumstance VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). In February 2011, in support of her claim for a higher, i.e., compensable initial rating, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board - in other words at a Travel Board hearing. A transcript of the proceeding is of record. The Board subsequently, in May 2011, remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development and consideration. A May 2012 rating decision since issued, on remand, increased the initial rating for this disability from 0 to 10 percent, retroactively effective from July 14, 2007, and also assigned separate ratings for each leg instead of a single, collective, rating. The Veteran continued to appeal for even greater compensation. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a service-connected disability, so receipt of a higher rating, but less than the maximum possible rating, does not abrogate a pending appeal). The Board again remanded the claims in July 2014. A January 2015 rating decision, on remand, again increased the rating for this bilateral lower extremity disability, this time however from 10 to 20 percent for each leg, retroactively effective from July 20, 2011. So this appeal now concerns whether the Veteran was entitled to an initial rating higher than 10 percent prior to July 20, 2011 (i.e., from July 14, 2007 to July 19, 2011), and whether she has been entitled to a rating higher than 20 percent since July 20, 2011. In the July 2014 and December 2015 remands, the Board observed that the issue of entitlement to service connection for a congenital joint disorder aggravated by service had been raised by the record, but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). The Board noted that it therefore did not have jurisdiction over this additional claim, and referred it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In an April 2016 VA memorandum, the Appeals Management Center (AMC) stated that it had determined that the inferred/non-AMC issue of entitlement to service connection for a congenital joint disorder aggravated by service had been raised by the record, but had not been initially adjudicated by the RO as the AOJ and required immediate attention by the RO (rather than by the AMC). In a January 2017 remand, the Board again observed that the issue of entitlement to service connection for a congenital joint disorder aggravated by service had been raised by the record, but had not been initially adjudicated by the RO. A February 2017 Supplemental Statement of the Case (SSOC), issued by the AMC, referenced findings of a VA medical addendum regarding deep vein thrombosis. However, it still does not appear the RO has adjudicated this additional claim, so the Board is again referring it for appropriate action. 38 C.F.R. § 19.9(b). There was an additional remand of these claims at issue in January 2017 for still further development and consideration. Regrettably, however, the Board must yet again REMAND these claims to the Agency of Original Jurisdiction (AOJ). REMAND Review of the claims file reveals the Veteran receives treatment from VA. The most recent VA treatment records associated with the claims file are dated in October 2016. These include a statement that the Veteran wanted to be transferred to the Wakeman Community Based Outpatient Clinic (CBOC). On remand attempts must be made to obtain complete VA treatment records regarding the Veteran dated since October 2016, to include treatment records from the Wakeman CBOC. See 38 C.F.R. § 3.159. The most recent VA medical examination regarding the severity of the Veteran's shin splint condition was performed in June 2011, so nearly 7 years ago. In the representative's statement dated in May 2017, it was pointed out the Veteran's medical records show treatment suggesting these conditions are getting worse. As such, the Veteran must be afforded a VA medical examination reassessing the severity of her disabilities. 38 C.F.R. §§ 4.1, 4.2; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, these claims are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records regarding the Veteran's bilateral shin splints dated since October 2016, including treatment records from Wakeman CBOC. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for a VA examination reassessing the severity of her service-connected bilateral shin splints. The claims file must be made available to the examiner for review in conjunction with the examination. All indicated tests should be performed. The examiner id requested to delineate all symptomatology associated with, and the current severity of, the disability. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose to ensure all of the relevant rating criteria are addressed. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate these claims in light of this and all other additional evidence. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with another SSOC and afford them reasonable opportunity to respond to it. Then return the file to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).