Citation Nr: 20028067 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-43 261 DATE: April 22, 2020 ORDER Entitlement to service connection for right leg shin splints is granted. Entitlement to service connection for left leg shin splints is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to bilateral shin splints, is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT The Veteran was diagnosed with shin splints in service and has experienced shin pain related to shin splints since her separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right leg shin splints have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for left leg shin splints have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 2002 to February 2006. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2012 rating decision which, in pertinent part, denied entitlement to service connection for bilateral shin splints, bilateral knee and ankle disabilities secondary to bilateral shin splints, and a right shoulder disability. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for bilateral shin splints. The Veteran contends that service connection is warranted for bilateral shin splints. Specifically, she alleges that she was treated for shin splints in service and that the pain has continued since. She further states that she treated her shin splint pain with over-the-counter medication until she established VA care as she did not have insurance. Following a review of the record, the Board finds that service connection for bilateral shin splints is warranted. Here, the Veteran’s service treatment records reflect complaints of and treatment for bilateral shin splints in January, March, and April 2004. The Veteran again sought in-service treatment for shin splints in August and September 2005, with the Veteran reporting intermittent pain over the last three years, or since bootcamp. The Veteran’s February 2006 separation examination noted a history of bilateral shin splints, but that the Veteran was “okay now.” In a June 2012 VA 21-4138 (Statement in Support of Claim), the Veteran reported that she developed bilateral shin splints while in bootcamp and marching in government-issued boots. The Veteran reported that she was treated in service for shin splints and that prolonged walking, stair climbing, or running continued to cause pain but that her only treatment was over-the-counter medication. In a July 2012 statement, the Veteran reported that she had been without insurance for some time and had not been seen by a doctor for the condition. A September 2012 VA examination report noted that the Veteran had been diagnosed with shin splints and continued to report achy pain in the anterior portion of both legs after walking long distances or running. Upon examination, the Veteran walked with a steady, normal gait and there was no tenderness of the bilateral lower extremities. The examiner noted that shin splints can develop after physical exercise and with repetitive activity. However, the examiner opined that the Veteran’s current complaints of episodes of anterior lower extremity pain was less likely than not related to her in-service treatment for bilateral shin splints. Post-service treatment records show that the Veteran established care with the VA in February 2013, and in April 2013, she reported a history of bilateral shin splints. An October 2014 VA treatment record reflects that the Veteran reported insidious onset of chronic pain in her shins for 10 years, with pain starting in the military. Her treating clinician provided a diagnosis of shin splints. A December 2014 VA examination report reflects that the examiner noted the Veteran had been diagnosed with shin splints in service although no diagnostics had been performed. Upon examination, there was no discomfort and the examiner noted that recent imaging studies had been normal. Thus, the examiner found that there was no clear diagnostic evidence of current pathology. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, however, nor is “definite” or “obvious” etiology; instead, this posited correlation need only be an “as likely as not” possibility. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Board is not persuaded by the opinions of the September 2012 and December 2014 VA examiners. While the September 2012 VA examiner opined that the Veteran’s current complaints of episodes of anterior lower extremity pain were less likely than not related to her in-service treatment for bilateral shin splints, the examiner did not provide a rationale or basis for the opinion. Additionally, while the December 2014 VA examiner found that the Veteran only had a subjective history of shin splints with no clinical or diagnostic evidence of shin splints in service or currently, the Board notes that the Veteran is competent to report her experiences and symptoms of shin pain in service and since service. Although the Veteran is not competent to provide a diagnosis of shin splints, see Jandreau v. Nicholson, 492 F. 3d 1372 (2007), Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), both the Veteran’s in-service treating clinicians and post-service VA clinicians have diagnosed her with shin splints. As her treating clinicians have diagnosed her with shin splints, the Board has given little probative weight to the December 2014 VA examiner’s opinion that the Veteran does not have a current diagnosis or pathology. Furthermore, the Board finds the Veteran’s statements concerning onset of shin pain in service and since service, and her reasons for not seeking treatment until she established VA care, to be credible, and there is no evidence to the contrary. In sum, the Veteran was diagnosed in service with bilateral shin splints. She has maintained that after service, she continued to have pain in her shins with walking, running, and climbing stairs. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for bilateral shin splints is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Evidence indicates that there may be outstanding relevant treatment records. Specifically, on a May 2012 VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans’ Affairs (VA)), the Veteran reported she sought treatment from the Ingleside Naval Clinic from 2006-2009. The only treatment records from Ingleside associated with the record are dated in 2008 and it is not clear whether the RO attempted to obtain these records. A remand is required to allow VA to obtain them. 1. The claims of entitlement to service connection for bilateral knee and ankle disabilities, to include as secondary to bilateral shin splints, are remanded. The Board cannot make a fully-informed decision on the claims of entitlement to service connection for bilateral knee and ankle disabilities, to include as secondary to bilateral shin splints. While September 2012 and December 2014 VA examiners found that the Veteran did not have diagnoses for her bilateral knees and ankles, the Board notes that pain alone can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Furthermore, neither examiner provided an adequate rationale or basis regarding whether the Veteran’s bilateral knee or ankle disabilities were secondary to her bilateral shin splints. Therefore, the Board finds that a remand is warranted so that a new VA medical opinion can be obtained as to the nature and etiology of the Veteran’s bilateral knee and ankle disabilities. 2. Entitlement to service connection for a right shoulder disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right shoulder disability at this time. While an August 2012 VA examiner found that the Veteran did not have a current right shoulder disability, subsequent imaging studies showed degenerative changes in the Veteran’s right shoulder. Additionally, while a December 2014 VA examiner opined that the Veteran’s current right shoulder degenerative changes were less likely than not caused by or otherwise related to her in-service right shoulder injury, the examiner’s opinion appears to be based mostly in part on a lack of post-service treatment. Specifically, the examiner found that the Veteran had healthcare available to her over the years yet chose not to seek treatment. The Board notes that it has found the Veteran’s statements that she did not seek treatment after service due to a lack of insurance to be credible. Furthermore, the Board notes that the Veteran established VA care in February 2013 and reported right shoulder pain in April 2013, only two months after establishing care. Therefore, the Board finds the December 2014 VA examiner’s opinion to be inadequate, and a new VA medical opinion is warranted as to the nature and etiology of the Veteran’s right shoulder disability. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the Ingleside Navel Clinic for treatment received from 2006 to 2009. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any bilateral knee or ankle disability. A new examination is not necessary unless deemed so by the examiner. The examiner must opine whether any bilateral knee or ankle disability is at least as likely as not (1) proximately due to service-connected disability, to include bilateral shin splints, or (2) aggravated beyond its natural progression by service-connected disability. The Board notes that pain alone can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any right shoulder disability. A new examination is not necessary unless deemed so by the examiner. The examiner must opine whether a right shoulder disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including an April 2002 right shoulder subluxation, (2) arthritis manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, to include the Veteran’s lay statements concerning her right shoulder disability and reasons for not seeking treatment. (Continued on next page)   4. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.