Citation Nr: 20043778 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-32 396 DATE: June 29, 2020 ORDER Entitlement to service connection for varicose veins is denied. Entitlement to an initial rating in excess of 10 percent for chronic exertional compartment syndrome, i.e., a right shin splint is denied. Entitlement to an initial rating in excess of 10 percent for chronic exertional compartment syndrome, i.e., a left shin splint is denied. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) are unremarkable for any complaints referable to varicose veins, and the earliest post-service clinical evidence of varicosities is not for more than a decade after her separation from service. 2. The preponderance of the evidence is against finding that she has lower extremity varicosities that were caused or aggravated by her service.   3. The most probative evidence indicates her right and left shin splints do not involve malunion of her tibia and fibula with moderate or marked knee or ankle disability or nonunion of the tibia and fibula with loose motion, requiring a brace. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for varicose veins of the lower extremities. 38 U.S.C. §§ 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria are not met for ratings in excess of 10 percent for the right and left chronic exertional compartment syndrome (shin splints). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC/Code) 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These claims were previously before the Board in August 2018 and again in January 2020, but both times remanded for further development and consideration – initially to have the Veteran undergo VA examinations for a medical nexus opinion concerning the origins of her lower extremity varicosities, especially in terms of whether caused or aggravated by her military service, also to reassess the severity of her lower extremity shin splints, to obtain any outstanding treatment records, and to then provide her and her representative a supplemental statement of the case (SSOC) addressing this additional evidence. There has been the required compliance – certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board is proceeding to adjudicating these claims. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for varicose veins (varicosities) The Veteran separated from service in October 1983. Her STRs are grossly unremarkable for suggestion of varicose veins – either in the way of a relevant subjective complaint (pertinent symptom, etc.) or objective clinical finding such as an actual diagnosis. A December 1998 Report of Medical Examination for Reserve purposes reflects that her pertinent systems were normal upon evaluation. The earliest clinical evidence of varicose veins is not until more than a decade after the Veteran separated from active service. A November 2000 private record (Falmouth Hospital) notes a history of varicose veins; this record does not, however, state the year of their inception. A July 2011 private record (Harvard Vanguard Medical Associates) reflects that, upon examination, the Veteran did not have varicose veins. Varicose veins were noted in 2012 and 2013 and the Veteran had surgery for them in 2013. The Veteran contends that she was first diagnosed with varicose veins in the 1980s after separating from service, but, as already mentioned, an intervening examination in 1998 showed normal systems and no mention or lingering issue with varicosities.   There is no clinical evidence of varicose veins to a compensable degree within a year of the Veteran’s separation from service to, in turn, warrant presuming her varicosities were incurred during her service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). And, regardless, varicose veins are not the type of disability contemplated by these presumptive provisions. The lapse of time between separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding whether it started during the Veteran’s service, has persisted during the years since, or is otherwise related or attributable to her service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, a June 2019 Disability Benefits Questionnaire (DBQ) indicates it is less likely than not that the Veteran has varicose veins due to her service. The examiner’s rationale was based on a lack of varicose veins on examinations in August 1979 and December 1998 and a lack of findings of varicose veins in the STRs. The examiner also noted that varicose veins are more prevalent in women, and that risk factors include smoking. This is significant because the Veteran is a woman and has a history of smoking, so the type of inherent risk factors specifically cited by the examiner. See June 2008 VA clinical record and July 2011 private record. It was noted the Veteran stopped smoking in 2008 or 2011, but that does not alleviate her prior history of smoking. Also, the examiner added that advanced age is a factor, and the Veteran, obviously, has aged since her separation from service. The Veteran is competent to observe varicose veins since the type of condition that is visible to the naked eye. However, she has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the etiology (cause) of this claimed disability – including in terms of whether it is attributable to her service. Simply, this type of determination is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).   The Board also finds that any contention as to varicose veins in service is not credible given the record as a whole (to include the lack of complaints concerning same and the normal examination upon reserve physical in 1998). Any clinical opinion based on continuity of symptoms or complaints in service and continually since consequently lacks probative value since predicated on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). In conclusion, there is no competent and credible evidence supporting service connection for this condition, and the medical opinion on this determinative issue of causation is against the claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3.   Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). “Staged” ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. 2. Entitlement to an increased rating for right leg shin splints AND 3. Entitlement to increased rating for left leg shin splints The Veteran’s shin splints are rated as 10-percent disabling for each lower extremity under DC 5262, which contemplates slight knee or ankle disability due to tibia and fibula impairment. She would be entitled to higher ratings if she had moderate knee or ankle disability (20 percent), or marked knee or ankle disability (30 percent), or nonunion with loose motion requiring a brace (40 percent). These descriptive words “slight,” “moderate,” and “marked”, as used in the various Diagnostic Codes, including DC 5262 specifically, are not defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6   A February 2014 VA examination report reflects that the Veteran complained of a burning sensation in the anterior shin on five minutes of power walking. During the objective clinical portion of that examination, she had knee flexion to 140 degrees with no objective evidence of pain. She had extension to 0 degrees, also with no objective evidence of pain. That is normal range of motion of the knee, which is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Moreover, on post repetitive use testing, her range of motion did not change (i.e., was not reduced), and she denied flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (explaining that consideration of § 4.59, regarding pain, is not just limited to disabilities involving arthritis). As well, she had no tenderness or pain to palpation and had full muscle strength. She had some instability of the anterior joint, but not in the others. She was observed to have anteromedial shin pain on prolonged or rapid ambulation. A more recent June 2019 VA DBQ reflects that the Veteran reported a worsening of her pain, and that it can be unprovoked and with standing or sitting. She noted that she can walk for 10 minutes, before she has worsening of pain, and that she has a worsening of pain with standing. She described the pain as severe and said it worsens in damp weather. She also reported paresthesia/dysesthesias in the lateral aspect of her right calf, as well as pain in the peripatellar aspect of her right knee. Regarding flare-ups, she reported that pain can worsen two or more times a week, lasting for a few hours up to 1-2 days. She had no issues with range of motion during flare-us but reported more difficulty with getting up and walking. She also reported increasing pain with walking, and that she avoids stairs due to her pain. On physical examination, she still had normal flexion and normal extension of both knees, so from 0 to 140 degrees, bilaterally, although pain was noted on rest, non-movement, with weightbearing, and on palpation. Notably, however, there was no additional loss of range of motion on repetitive use testing. She also had full muscle strength. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. She had normal stability testing in all joints. It was noted that her shin splints did not affect range of motion of her knees or ankles. The Board acknowledges the Veteran’s complaints of pain, but it has not resulted in impairment of her lower extremities such as to, in turn, warrant increased ratings. The United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court also clarified in Mitchell, however, that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. In this case at hand, the Veteran has full range of motion of her right and left knees, and the examiner specifically determined the Veteran’s shin splints do not affect the range of motion of her knees or ankles, i.e., the pain owing to her shin splints does not decrease the range of motion in her knees and ankles, even not on prolonged or repetitive use of them. Therefore, according to the holdings in Mitchell, she is entitled at most to 10 percent ratings for her pain, which are the ratings she already has. The Board acknowledges the Veteran reports that she avoids stairs due to her pain; however, this has not been shown to cause a significant impairment in her daily functioning (i.e., it has not been shown by competent and credible evidence that her job and living arrangement cause extensive use of stairs). With regards to instability noted in 2014, it was only slight and is considered in the rating criteria under DC 5262; thus, a separate rating would be impermissible pyramiding according to VA regulation – 38 C.F.R. § 4.14. Moreover, she no longer had instability during the additional, more recent, testing for this in 2019. No clinician has found more than slight impairment owing to the shin splints, and the clinical records do not support ratings higher than 10 percent. As the preponderance of the evidence is against these claims, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.