Citation Nr: 1808872 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 17-05 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to an initial compensable rating for bilateral shin splints. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active military from November 1995 to March 2003. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a March 2014 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran filed a timely notice of disagreement with the initial 10 percent rating assigned in the March 2014 rating decision for acne keloidalis nuchae. The Veteran was issued a statement of the case addressing that issue in April 2016. In his February 2017 substantive appeal, the Veteran specifically limited his appeal to those issues identified above. Therefore, the Board has limited its consideration accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The issues of entitlement to service connection for bilateral hearing loss disability and a back disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's bilateral shin splints are not productive of any residuals, knee or ankle impairment, or other functional impairment or loss of motion. CONCLUSION OF LAW The criteria for a compensable rating for bilateral shin splints have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has asserted that the symptoms of his shin splints are worse than accounted for by the initial noncompensable rating assigned. At a March 2014 VA examination, the Veteran reported that the onset of shin splints occurred during the course of active service, and that he continued to experience shin splints after exercise. He denied flare-ups or did not require assistive devices for ambulation. Upon physical examination, the examiner found normal bilateral knee flexion and extension. There was no history or evidence of recurrent patellar subluxation or dislocation, no meniscal conditions, or any joint replacement or surgical procedures. The examiner did not take measurements for range of motion, pain, functional loss, or additional limitation on range of motion as they were not applicable. Further, the examiner did not test joint stability as it was inapplicable in this matter. Upon diagnostic imaging, there was no degenerative or traumatic arthritis found, and no further functional impact was shown. The examiner found that the Veteran had no residuals, and no knee or ankle disability. The Board notes that the Veteran was most recently afforded VA examination predates Correia. As stated in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. The Board acknowledges that the examiner did not test for passive motion or for pain with weight bearing and non-weight bearing. However, the Board finds that such errors are harmless. The Veteran's disability, although musculoskeletal in nature, does not affect range of motion, nor was shown to cause any further disability related to his knees or ankles. Furthermore, the Veteran's bilateral shin splint disability does not contribute to painful motion that is productive of a disability, nor is it related to "painful, unstable, or malaligned joints, due to healed injury." See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Moreover, the opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that he has symptoms of his shin splints that are worse than those reported at his VA examination, to specifically include knee or ankle impairment. The Board finds that the Veteran is not entitled to an initial compensable rating for his bilateral shin splints. In this regard, there is no indication from the record that the Veteran's shin splints, even when symptomatic, cause him to have any knee or ankle impairment. Therefore, in the absence of knee and/or ankle impairment, a compensable rating for bilateral shin splints is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). ORDER Entitlement to an initial compensable rating for bilateral shin splints is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. With regard to the Veteran's claim of entitlement to service connection for bilateral hearing loss disability, the Veteran was scheduled for two separate VA examinations that could not be conducted due to impacted cerumen. Then, the Veteran failed to appear for a third VA examination scheduled in February 2016. However, the Board notes that the Veteran has consistently maintained contact with VA, and actively pursued his claims on appeal and other claims not yet adjudicated. Further, the Board notes that the claims file indicates the Veteran appeared for a separate and unrelated 2018 VA examination, which the Board takes as indication of the Veteran's intent to cooperate with the development of his pending claims. Thus, the Board finds good cause to afford the Veteran another opportunity to present for a VA audiological evaluation. With regard to the Veteran's claim of entitlement to service connection for a back disability, the Veteran was afforded a VA examination in March 2014. At that examination, the examiner opined the Veteran's back disability was less likely as not caused by or a result of his active service. The examiner noted that there was no evidence to support chronicity during service. The Board finds the March 2014 opinion inadequate. In this regard, the examiner did not provide a sufficiently detailed rationale for the conclusion reached. Additionally, it is not clear from the examination report whether the examiner reviewed the record prior to providing the opinion. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Additionally, current treatment records should be identified and obtained before a decision is made in this case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiology evaluation by an examiner with appropriate expertise to determine the nature and etiology of any currently present bilateral hearing loss disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present hearing loss is etiologically related to active service, to include exposure to hazardous noise exposure in such. For the purposes of the opinion, the examiner should presume that the Veteran is a reliable historian with regard to his report of noise exposure during active service. The rationale for all opinions expressed must be provided. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present back disability had its onset during active service, or is otherwise etiologically related to active service. In forming the opinion, the examiner should specifically address the Veteran's lay statements regarding onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs