Citation Nr: 20007596 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 11-12 217 DATE: January 29, 2020 ORDER A rating in excess of 10 percent for right shin splint with periosteal inflammation of the tibia is denied. A rating in excess of 10 percent for a left shin splint with periosteal inflammation of the tibia is denied. FINDINGS OF FACT 1. The Veteran had active service from May 1988 to October 1991. 2. Throughout the period on appeal, the Veteran’s shin splints have been productive of subjective complaints of pain, burning, and swelling; objective findings revealed no ankylosis, no subluxation or lateral instability, no episodes locking, no nonunion or malunion of the tibia and fibula, and normal ranges of motion of the knees. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 10 percent for right shin splint with periosteal inflammation of the tibia have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5299-5262 (2019). 2. For the entire period on appeal, the criteria for a rating in excess of 10 percent for left shin splint with periosteal inflammation of the tibia have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, DCs 5299-5262 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2017, the appeals were remanded for additional development. They are now returned for further adjudication. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s bilateral shin splints are rated by analogy under DC 5299-5262 due to impairment of the tibia and fibula. Under DC 5262, ratings are based on impairment of the knee or ankle. The September 2017 VA examination revealed that the Veteran had developed degenerative arthritis in both knees secondary to bilateral shin splint. As such, the Board will consider the function of the knee impairment. Accordingly, in order to warrant a higher rating, the evidence must show impairment of the tibia and fibula with nonunion with loose motion, requiring a brace, or malunion with moderate knee disability (20 percent under DC 5262). Turning to the evidence, in a July 2009 VA examination, the Veteran complained of mild pain, weakness, stiffness, swelling and heat. He also noted that there was mild instability and giving way. He denied redness, drainage, abnormal motion, osteomyelitis, or locking. He further reported treating with ibuprofen and ice packs as needed. Upon examination, there was tenderness of the bilateral pretibial area, but no malunion, nonunion, painful motion, deformity, or weakness. His gait was normal, and there was no ankylosis or joint involvement. The examiner diagnosed shin splints with periosteal inflammation of the tibia bilaterally and opined that it had minimal effect on the Veteran’s usual daily activities. This evidence does not support a higher rating as there was no malunion or nonunion and no evidence of knee impairment as his gait was normal and there was minimal effect on daily activities. In an October 2009 VA treatment note, the Veteran revealed that his shin splints were “better” and that he was continuing to do his exercises at home and use his calf supports. There was mild tenderness to touch over his anterior tibia, and he rated his pain as a 4 four of 10. He denied numbness or tingling, and his gait was normal. Plantar flexion and dorsiflexion were limited; however, the examiner did not attribute the ankle limitation to shin splints. Further VA treatment notes from that time period were also reviewed but included no opinion relating an ankle disorder to shin splints. Rather, the ankle complaints were frequently discussed in connection with weight issues. VA treatment notes from June 2010 revealed that the Veteran complained of more frequent pain in his shins. There was no evidence of reduced range of motion, ankylosis, nonunion or malunion of the tibia and fibula or degenerative arthritis of the knees at that time. X-rays were negative for any pertinent findings. Based on the above, the clinical records do not support a higher rating. While pain was noted, the evidence did not show nonunion or malunion or that shin splints impacted the ankles or knees. In a November 2011 VA examination, the Veteran reported feeling “at least 50 percent better” following physical therapy exercises which improved his range and strength. Once again, there was no osteomyelitis, inflammation, fractures or deformities. Range of motion was normal, and he denied any flare-ups. He reported only wearing leg braces 1-2 times per week to support his shins. There were no bone or joint abnormalities, no malunion, and X-rays revealed no abnormal changes. This evidence suggests that the brace was not due to malunion or nonunion as neither of those findings were made. There was moderate tenderness noted bilaterally on palpation. The examiner diagnosed bilateral chronic shin splints with periosteal inflammation of the tibia, resulting in decreased mobility. There were moderate effects on his abilities to exercise and engage in sports, but otherwise mild effect on functional impact. This evidence does not support a higher rating as the evidence did not show nonunion or malunion or a moderate ankle or knee disability. VA treatment notes from 2011 revealed occasional complaints of shin pain. Specifically, May 2013 VA treatment notes showed that the Veteran was requesting new lower leg braces for shin splints but no increased pain or instability. No further pertinent findings are noted until April 2016 when he complained of an exacerbation of his shin splints with prolonged walking or standing. No physical assessment was undertaken to assess the appropriate rating. While he reported pain with an exacerbation, the evidence does not show knee or ankle impairment. At an April 2016 VA examination, the Veteran’s previous diagnoses of bilateral chronic shin splints with periosteal inflammation of the tibia were confirmed. He reported flare-ups if he was on his legs for too long, and that working had become difficult for him. Objective findings revealed normal range of motion bilaterally, with a complaint of tenderness on palpation which the examiner described as mild. There was no additional loss of range of motion upon repetitive use testing bilaterally. The examiner found no evidence of instability, swelling, or atrophy, but noted disturbance of locomotion due to lack of endurance. Muscle strength testing revealed normal results, there was no ankylosis, malunion or nonunion of the tibia and fibula, lateral instability, or subluxation bilaterally. The examiner characterized the bilateral shin splints as manifested mostly as ongoing pain in both calves with aching anterior tibia. This evidence does not support the claim as the examiner specifically found no nonunion or malunion and no knee impairment as range of motion was normal. In a June 2017 VA treatment note, the Veteran reported no acute changes in his shin splints. In a September 2017 VA examination, the Veteran reported continuing pain and burning with prolonged standing and walking radiating to his ankles. The examiner found that he had bilateral knee degenerative arthritis which were more likely than not a progression of the shin splints. Range of motion was found to be intact bilaterally, with moderate tenderness to the both shins due to shin splints. The Veteran was able to perform repetitive use testing bilaterally without any loss of range of motion. There were no impediments found resulting in functional loss. Upon examination, the examiner found that shin splints manifested largely as swelling bilaterally. Muscle strength was normal and without any evidence of atrophy, or ankylosis bilaterally. There was no lateral instability or recurrent subluxation, meniscal conditions, or nonunion or malunion of the tibia and fibula. The examiner noted that the Veteran’s shin splints did not result in or cause any abnormal range of motion in either the knees or ankles, despite pain radiating to his ankles. Finally, the examiner found that shin splints and knee symptoms did not limit the Veteran’s ability to perform any type of occupational task such as standing, walking, lifting or sitting. There was also no objective evidence of pain on weight-bearing. The examiner opined that while there was progression and worsening of the shin splints, there was no way to opine without resorting to mere speculation whether the level of pain and impairment could be compared to anything else. VA treatment notes from September 2017 to present were also reviewed but revealed no significant worsening of the Veteran’s bilateral shin splints. Specifically, he mostly reported that while they were painful, the pain was managed with orthotics, exercises, use of a brace, and pain medication. After considering the totality of the evidence, a rating in excess of 10 percent for right and left shin splints is not warranted. Specifically, while the record has been reviewed in full, there has been no evidence of ankylosis of the knee with limited range of motion, recurrent subluxation or lateral instability resulting in moderate impairment, dislocated cartilage, semilunar with frequent episodes of locking, pain and effusion to the joint, abnormal ranges of motion, or impairment of the tibia and fibula with nonunion or malunion with moderate knee or ankle disability. The Veteran’s numerous examinations and treatment records have instead revealed intact ranges of motion, no joint or muscle strength issues, no ankylosis, and no instability or subluxation. In so finding, the Board acknowledges that the Veteran’s symptoms have occasionally been referred to as “moderate” during VA examinations, specifically in relation to moderate tenderness and the occasional moderate impairment in exercise and sports but not “moderate” in terms of the knee or ankle impairment. The Veteran has asserted that he is entitled to a higher rating that his symptoms have been described as moderate. However, a reasonable reading of DC 5262 is that having a moderate shin split impairment does not support a higher rating. Rather, there must first be malunion of the tibia and fibula which results in moderate knee or ankle disability. The medical evidence has consistently found no nonunion or malunion of the tibia and fibula. Next, the Veteran asserts that he is entitled to a 40 percent rating under DC 5270 for limited plantar flexion and dorsiflexion. Specifically, he contends that an October 2009 VA physical therapy treatment note found that he had limited plantar flexion and dorsiflexion and that such a rating was therefore warranted. However, no ankle disorder has been found to be secondary to shin splints. In this regard, even as several examiners have examined and linked his knee disorders to shin splints, no such link has been made to any ankle disorder. Moreover, the September 2017 VA examiner evaluated the Veteran’s ankles, shins, and knees. While he found that all ranges of motion were normal, he also found that the shin splints and knee disorders had no effect on any limitations in range of motion of the ankle. As such, no medical link has been established between the disorders as would be required to consider the ankle a service-connected disability. Next, the Veteran maintains that the August 2009 VA examination where he was found to have pain with too much activity, decreased coordination with increased speed, decreased range of strength in ankles and toes, and the use of a brace caused more pain and irritation of the skin warrants a higher rating. However, these symptoms have been considered by the assignment of a 10 percent rating for pain. Next, the Veteran asserts that the opinion of the September 2017 VA examiner that the shin splints were getting worse entitles him to a higher rating. Specifically, he has asserted that the opinion rendered that there was no normal pain standard which could be assigned to nonunion or malunion of a fracture without mere speculation was more consistent with the benefit of the doubt being resolved in his favor. The Board again acknowledges the Veteran’s assertions and his statement in this regard; however, it must be reiterated that while the examiner said that no pain level could be assigned to malunion or nonunion, there was no evidence of malunion or nonunion found upon examination. Importantly, without the finding of nonunion or malunion of the tibia and fibula, the pain level resulting in “mild, moderate, or severe” is not contemplated in the assignment of a rating. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s shin disabilities been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.