Citation Nr: 1817386 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-10 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disabling rating in excess of 10 percent for right leg shin splints. 2. Entitlement to a disabling rating in excess of 10 percent for left leg shin splints. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from April 1989 to September 1991. This appeal arises before the Board of Veterans' Appeals (Board) from an April 2010 rating decision in which the Department of Veteran Affairs (VA) New Orleans, Louisiana, Regional Office (RO) continued 10 percent disabling evaluations for shin splints for the left leg and right leg, and denied entitlement to a TDIU. The Board notes that the Veteran filed a formal claim for a TDIU in February 2010. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran is seeking entitlement to a TDIU as a component of her claim for a higher initial rating for her service-connected shin splints. FINDINGS OF FACT 1. Prior to August 3, 2017, the evidence indicates that the Veteran's right leg shin splints disability manifested by symptoms indicative of slight knee or ankle impairment. 2. From August 3, 2017, the evidence indicates that the Veteran's right leg shin splints disability has been manifested by a marked knee or ankle disability. 3. Prior to August 3, 2017, the evidence indicates that the Veteran's left leg shin splints were manifested by symptoms indicative of slight knee or ankle impairment. 4. From August 3, 2017, the evidence indicates that the Veteran's left leg shin splints disability has been manifested by a marked knee or ankle disability. 5. The combined functional impact of the Veteran's disabilities has not been shown to preclude the Veteran from finding substantially gainful sedentary employment or manual employment that would not require prolonged standing or walking. CONCLUSIONS OF LAW 1. Prior to August 3, 2017, the criteria for a disabling rating in excess of 10 percent for right leg shin splints have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). 2. From August 3, 2017, the criteria for a disabling rating of 30 percent, but no higher, for right leg shin splints, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). 3. Prior to August 3, 2017, the criteria for a disabling rating in excess of 10 percent for left leg shin splints have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). 4. From August 3, 2017, the criteria for a disabling rating of 30 percent, but no higher, for left leg shin splints, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as "staged" ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. At the outset, the Board notes that, during the pendency of the claim, the Veteran filed claims for service connection for bilateral knees and ankles, secondary to the Veteran's service-connected shin splints. In the September 2017 rating decision, the RO noted that service connection is warranted for bilateral knee and ankles, but the regulations require that these disorders be evaluated with her shin splints (so as to prevent pyramiding). The Board notes that the applicable rating criteria pertaining to shin splints, as detailed below, specifically contemplate impairment of the knee and ankle. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing is related considerations. 38 C.F.R. § 4.45 (2017). For the purpose of rating disability from arthritis, the knee and ankle are considered major joints while the lumbar vertebrae are considered groups of minor joints. See 38 C.F.R. § 4.45. The Veteran's service-connected shin splints are currently rated as 10 percent disabling under Diagnostic Code 5262. Under this diagnostic code, a 10 percent rating is warranted when impairment of the tibia and fibula is characterized by malunion with slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). A 20 percent rating is warranted when impairment of the tibia and fibula is characterized by malunion with moderate knee or ankle disability. Id. A 30 percent rating is warranted when impairment of the tibia and fibula is characterized by malunion with marked knee or ankle disability. Id. A maximum 40 percent rating is warranted when there is impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace. Id. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating 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. 38 C.F.R. § 4.6. The Veteran contends that the symptoms of her bilateral leg shin splints are such that they warrant a higher disabling rating. Turning to the record of evidence, in an August 2009 private medical record, the examiner stated that the Veteran could not stand for more long periods. The examiner also stated that the Veteran had limitations on standing, sitting, walking and lifting. The examiner went on to state that limitations on activities of daily living are due to leg problem, weight, diabetes mellitus and other medical conditions. In March 2010 VA examinations, the Veteran reported pain and stiffness in the knees and lower legs. The examiner observed inflammation in the tibias, with symptoms of heat, swelling, and tenderness. The examiner noted pain in the tibias, stiffness of the knees, and fatigability of the shins. The examiner stated that the condition affected the motion of the joint. Upon physical examination, the examiner reported that there was no evidence of leg shortening, abnormal bone or joint, active infection, or effect on weight-bearing a joint. The examiner noted that there was functional limitation on standing and walking, stating that the Veteran was only able to stand for 15 to 30 minutes and unable to walk more than a few yards. The examiner reported that the shin splints had significant general occupational effects. The examiner noted that the Veteran's disability had impact on occupational activities, including decreased mobility, problems lifting and carrying, and pain. The examiner further noted effects on usual daily activities including mild effect on chores, shopping, and traveling, and moderate effect on exercise, sports, and recreation. In an August 2017 VA examination, the Veteran reported initially having pain that radiated from her shins but that later progressed to involve increased pain, stiffness, and burning. The Veteran stated that her condition has gotten worse and that she now experiences more severe pain, and more frequent flare ups that sometimes involved a loss of sensation and weakness. She further reported having bilateral ankle flare ups, described as intense and frequent burning pain, tenderness, stiffness, and increased fatigue. The Veteran reported having difficulty walking, sitting, or standing for prolonged periods, along with an inability to squat, exercise or climb stairs. On examination, the examiner indicated that the range of motion of the bilateral ankles was abnormal or outside of normal range for initial range of motion measurements. The examiner reported that range of motion itself contributes to functional loss described as inability dorsiflex of the right foot and very limited range of motion and decreased ability to dorsiflex left foot. The examiner noted pain on examination of the plantar flexion of both ankles, which caused additional functional loss. The examiner also stated that there was evidence of pain with weight bearing and objective evidence of crepitus. The examiner noted that passive range of motion testing on the right and left ankle was not performed as it was not medically appropriate because of pain. The examiner also noted that there was objective evidence of pain on non-weight bearing testing of both the right and left ankles. The examiner stated that swelling, disturbance in locomotion, and interference with standing were additional contributing factors of the disability. The examiner reported that, upon muscle strength testing, there was palpable or visible muscle contraction, but no joint movement, with plantar flexion and dorsiflexion of both ankles. The examiner stated that the claimant's knee pain is most likely due to patellar/quadriceps tendonitis sustained as a result of shin splints and knee pain that was incurred in service. The examiner went on to report that the Veteran's shin splints and stress fractures of the lower leg affect range of motion of both knees. The examiner described current symptoms as severe anterior leg pain. The examiner stated that the diagnoses impact the Veteran's ability to perform occupational tasks in that knee, shin, and ankle pain caused limited ability to stand or walk for prolonged periods. The examiner indicated that the Veteran regularly used a walker and occasionally used crutches as assistive devices. After consideration of the lay and objective evidence of record, the Board finds that the assignment of a 30 percent disabling rating for right leg shin splints and a 30 percent disabling rating for left leg shin splints, from August 3, 2017, and afterward, is appropriate. The evidence dated prior to August 2017, particularly the March 2010 VA examination, does not show tibia and fibula impairment with a moderate knee or ankle disability, as the clinical findings primarily show inflammation, swelling, tenderness, and pain of the bilateral legs. Moreover, the March 2010 examiner found the disability to have no more than mild effects on the Veteran's ability to perform chores, shopping, and travel. While the March 2010 examiner noted functional limitations with standing and walking, the objective evidence and lay statements do not indicate that the Veteran's bilateral shin splints disability more closely approximates the criteria contemplated for a higher rating prior to August 3, 2017. In contrast, the August 2017 VA examination establishes an increase in the Veteran's symptoms such that there was severe loss of muscle strength in the ankles. Moreover, the evidence indicates that the Veteran's knee range of motion is affected by the bilateral shin splints. For these reasons, a 30 percent disabling rating for each leg is warranted. The evidence of record does not establish that the Veteran had nonunion of tibia and fibula, with loose motion, requiring a brace. Therefore, a 40 percent rating is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements in support of her claim. The Board notes that the Veteran is competent to report observations with regard to the severity of her symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent she argues her symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. For all these reasons, the Board finds that ratings of 30 percent disabling, but no higher, from August 3, 2017, for right leg and left leg shin splints, are warranted. II. TDIU The Veteran contends that she is unable to work due to her service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). For a veteran to prevail on a claim for a TDIU, the sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the veteran is entitled to a TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a) (2017). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(2) (2017). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements, but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). The United States Court of Appeals for Veterans Claims (Court) has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. The Veteran is currently rated for the following service-connected disabilities: 50 percent disabling for bilateral flat foot, effective May 13, 2017; 10 percent disabling prior to August 3, 2017, and 30 percent disabling thereafter for right leg shin splints; and 10 percent disabling prior to August 3, 2017, and 30 percent disabling thereafter for left leg shin splints. The Veteran has had a combined rating evaluation of at least 70 percent disabling since May 13, 2017. Therefore, the service-connected disabilities met the schedular criteria for a TDIU during the appeal period. 38 C.F.R. § 4.16(a) (2017). Turning to the evidence of record, in several applications for a TDIU, to include the May 2017 TDIU application, the Veteran indicated that her highest level of education is four years of college and that she earned a bachelor's degree. The Veteran also reported that she completed specialist clerk training. The Veteran stated that she was last employed as a part-time substitute teacher from March 2016 to May 2016, and further stated that she worked in that same capacity for the same employer from January 2013 to May 2013, from August 2013 to December 2013, and from January 2014 to May 2014. She also reported previous work experience as a mail clerk, temporary clerk, custodian, and in customer service. The Veteran remarked that work slowed down, but she could not stand on her feet for long hours due to aggravated inflammation. In a June 2017 response to request for employment information, the Veteran's last employers stated that the Veteran was a substitute teacher who was subject to call on a day-to-day basis, as needed. The employer further stated that the Veteran had been deactivated because she has not physically worked for more than one year. The employer stated that the Veteran last worked in May 2016. In an August 2009 private medical record, the examiner stated that the Veteran had limitations on standing, sitting, walking and lifting. The examiner went on to state that limitations on activities of daily living are due to leg problem, weight, diabetes mellitus and other medical conditions. In the May 2010 VA examination, the examiner stated that the Veteran's disability had impact on occupational activities, including decreased mobility, problems lifting and carrying, and pain. In the August 2017 VA examination, the examiner stated that the Veteran's shin disability caused limited ability to stand or walk for prolonged periods. The Board finds the credible and probative evidence does not establish that the Veteran is unemployable due to her service-connected disability at any time during the period on appeal. The combined functional impact of the Veteran's service-connected disabilities has not been shown to preclude the Veteran from finding substantially gainful sedentary employment or manual employment that would not require prolonged standing or walking. While the August 2009 private record lists sitting as a functional impact, the examiner did not indicate whether the Veteran was prevented from sedentary work due solely to her service-connected disabilities. Moreover, later medical evidence suggests that the Veteran's service-connected disabilities affect standing and walking. These disabilities may limit, but would not individually, nor collectively prevent the Veteran from securing and keeping employment given her education level and prior work experience. In reaching this decision, the Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the Veteran's claim, such rule is not for application. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to August 3, 2017, a rating in excess of 10 percent for right leg shin splints is denied. From August 3, 2017, a rating of 30 percent disabling, but no higher, for right leg shin splints is granted. Prior to August 3, 2017, a rating in excess of 10 percent for left leg shin splints is denied. (CONTINUED ON NEXT PAGE) From August 3, 2017, a rating of 30 percent disabling, but no higher, for left leg shin splints is granted. Entitlement to a TDIU is denied. _________________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals