Citation Nr: 18111663 Decision Date: 06/19/18 Archive Date: 06/16/18 DOCKET NO. 15-14 365 DATE: June 19, 2018 ORDER An initial 10 percent rating, but no greater, for right lower extremity shin splints is granted. An initial 10 percent rating, but no greater, for left lower extremity shin splints is granted. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s bilateral shin splints have been manifested by subjective complaints of pain with prolonged walking or jogging and with weightbearing and objective evidence of tenderness to palpation over the left and right shins. This disability does not involve significant impairment of either the knees or ankles. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for shin splints of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5022, 5260, 5261, 5262, 5271. 2. The criteria for an initial rating of 10 percent, but no higher, for the left lower extremity 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5022, 5260, 5261, 5262, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1987 to June 1990 and November 1990 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran is seeking a higher rating for his service-connected bilateral shin splints. Currently, the Veteran is in receipt of noncompensable disabling ratings. 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; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare ups, and those factors not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Veteran’s bilateral shin disability is currently rated under diagnostic code 5299-5262. See 38 C.F.R. § 4.27 (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 diagnostic code is shown after the hyphen); see also (unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and “99”). Under Diagnostic Code 5262, a 10 percent rating is warranted for a slight knee or ankle disability. The Board finds that the Veteran’s competent and credible report of pain with prolonged walking or jogging and with weightbearing along with the objective evidence of tenderness to palpation indicates the Veteran has a slight disability, warranting increased initial 10 percent ratings. The Board finds that the evidence more nearly approximates a slight shin splint disability in both legs such that an initial 10 percent rating is warranted for each lower extremity. Medical treatment records reveal a diagnosis of chronic bilateral shin splints. Specifically, the August 2013 VA examination report documented “pain/tenderness with prolonged walking and jogging.” More recently, the May 2015 knee examination report noted the Veteran’s complaints of pain while running. Accordingly, the Board finds that the evidence of record supports a finding that the Veteran’s bilateral shin splints rise to the level of slight when considering the Veteran’s reports of pain along his lower extremities. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 204-07. The Board has considered whether a rating higher than 10 percent is warranted, but concludes that it is not. A higher rating is not warranted under Diagnostic Code 5262 because the evidence does not show that the Veteran’s bilateral shin splints has been productive of more than slights symptoms. Throughout the period on appeal, the Veteran has consistently indicated that he experiences pain while running, jogging, or prolonged standing. The Veteran’s reports demonstrate that his disability is productive of only slight functional impairment as he is able to regularly engage in at least moderate physical activity. As there is no evidence of significant worsening of the Veteran’s condition since his last examination, the Board finds these reports highly probative in assessing the effect that his bilateral shin disability has had on his ability to function under the ordinary conditions of daily life. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (“the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted”). Also, the Board notes that the Veteran requested a higher 10 percent rating for his disability in his September 2013 notice of disagreement. The Board also finds that the Veteran is not entitled to ratings higher than 10 percent due to functional impairment as a result of pain on repetitive use. On each examination, the Veteran's range of motion was not shown to be limited by pain, fatigue, weakness, or lack of endurance, with repetitive movement. Additionally, even if the Veteran does experience occasional flare-up of his shin splint disability, the Board finds it unlikely, and there is no evidence which suggests, that, on repetitive use, the knees or ankles would be restricted to the degree required for a rating higher than 10 percent. Thus, even considering the effects of pain on use, there is no probative evidence that the knees or ankles are moderately limited in motion, and thus the requirements for an initial rating higher than 10 percent have not been met. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Finally, the evidence of record does not indicate the Veteran has arthritis of any type, osteoporosis, osteomalacia, new benign growth of bones, gout, hydrarthrosis, bursitis, myositis, periostitis, myositis, or tenosynovitis (Diagnostic Codes 5003-5024). The evidence does also does not indicate the Veteran suffers from any limitation of motion, ankylosis of the knee, genu recurvatum, any knee cartilage issues, or any impairment of his tibia and fibula with slight knee or ankle disabilities (Diagnostic Codes 5256 - 5262). Therefore, an increased rating under another diagnostic code must be denied. The Board finds that the Veteran’s disability picture more closely approximates the criteria for a 10 percent rating under Diagnostic Code 5299-5262 for each lower extremity. In finding that higher ratings are not warranted for the Veteran’s bilateral shin splints, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel