Citation Nr: 20046099 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 14-11 326 DATE: July 9, 2020 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to December 2, 2015, for shin splints of the right and left legs is denied. Entitlement to an evaluation of 20 percent, but no greater, beginning December 2, 2015, for shin splints of the right and left legs is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a compensable initial evaluation for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. Prior to December 2, 2015, the record does not reflect evidence of additional knee disability associated with the shin splints of the right and left legs. 2. Beginning December 2, 2015, the record reflects increased pain, swelling, and flare-ups of the right and left lower legs contributing to disability in the right and left knees. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to December 2, 2015, for shin splints of the right and leg have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5262. 2. The criteria for an evaluation of 20 percent, but no greater, beginning December 2, 2015, for shin splints of the right and left leg have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from February 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2018. This case was previously before the Board in June 2018, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review. As an initial matter, a May 2020 rating decision granted an increased initial evaluation of 10 percent for the Veteran’s service-connected shin splints of the right and left legs. As the Veteran has not expressed satisfaction with the grant of a 10 percent evaluation, the issue of entitlement to a higher rating for this period remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to seek the maximum benefit permitted under the regulations). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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. Entitlement to an initial evaluation in excess of 10 percent for shin splints of the right and left legs The Veteran’s shin splints are currently rated by analogy under Diagnostic Code 5262, which relates to impairment of the tibia and fibula. Under this schedule, 10, 20, and 30 percent ratings are assigned when there is malunion of the tibia and fibular with a slight, moderate, or marked knee or ankle disability, respectively. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. The record reflects an increase in disability during the period on appeal. At a March 2013 VA examination, the Veteran reported persistent pain in both shins, as well as flare-ups with increased pain and swelling in both shins. The examiner noted soft tissue swelling in the lower extremities, more so on the right leg. The range of motion of both knees was normal, and there was no decrease in strength noted in either knee. The Veteran’s private treatment records indicate he sought treatment for increased shin pain in December 2015, for which his physician prescribed physical therapy. The Veteran reported bilateral lower leg pain that led him to avoid activity, and that he was only able to tolerate about 10 minutes of standing or walking. The physical therapist noted decreased lower extremity strength, flexibility, and range of motion. In April 2018, the Veteran testified at a Board hearing that he is unable to walk farther than 300 yards at a time, and that he experiences a burning sensation, swelling, pain, and discomfort in both his shins. He also testified that he did not seek treatment for his shin splints at any VA medical facility. At an October 2019 VA examination, the Veteran reported pain after running for long distances, and severe flare-ups of both knees lasting up to two days after excessive walking or too much physical activity. The examiner noted mild tenderness on palpation in both shins. The range of motion of the knees was measured as 115 degrees in flexion in the right knee and 90 degrees in flexion in the left knee. The examiner noted that the range of motion testing was effort-dependent and that the Veteran preferred to limit the range of motion of his knees due to back pain. The examiner also noted that the shin splints affected the range of motion in the knees and not the ankles. Muscle strength in both knees was normal. The examiner noted the Veteran regularly uses a cane to aid in walking, but that the cane is for the Veteran’s back disability. After review of the evidence of record, the Board finds an increased evaluation is warranted for both right and left leg shin splints beginning December 2, 2015, the date the Veteran sought treatment for increased severity of symptoms relating to his shin splints. The physical therapy records following this date reflect increased pain and decreased muscle strength in the lower leg, as well as lay statements from the Veteran that he was unable to walk or stand for more than 10 minutes without increased pain and discomfort. Similarly, in April 2018, the Veteran testified that he was unable to walk farther than 300 yards without pain, and that his typical symptoms included swelling, pain, discomfort, and a burning sensation. Although by the October 2019 VA examination, the Veteran reported being able to run and had normal muscle strength in his knees, he reported experiencing flare-ups of severe knee pain. Further, at this examination, the range of motion of both knees was reduced due to the shin splints. The Board finds that these shin splint symptoms and the associated functional impairment in the knees are best described by the criteria for a 20 percent rating under DC 5262, as impairment of the tibia and fibula with moderate knee disability. Prior to December 2, 2015, the current 10 percent evaluation is appropriate. Notably, no knee impairment was noted at the March 2013 VA examination, and there is no evidence elsewhere in the record of additional knee disability. Further, the symptoms described by the Veteran were limited to persistent pain and flare-ups with swelling. Although the Veteran’s shin splints are not specifically rated based on range of motion loss due to the lack of additional knee or ankle disability, the 10 percent rating assigned for each leg is generally reflective of the compensation granted for pain without otherwise compensable functional impairment. See 38 C.F.R. § 4.59. Accordingly, prior to December 2, 2015, an increased evaluation is not warranted. REASONS FOR REMAND 1. Entitlement to a compensable initial evaluation for right ear hearing loss is remanded. 2. Entitlement to service connection for left ear hearing loss is remanded. The Board notes the RO attempted to schedule the Veteran for a VA examination in conjunction with these claims, but the examination was cancelled due to a lack of equipment at the prison. However, the Veteran’s incarceration does not negate VA’s statutory obligation to assist in the development of his claims. 38 U.S.C. § 5103A. VA’s duty to assist incarcerated veterans requires tailored assistance to meet the circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995). Therefore, a remand is necessary to attempt to obtain the examination the RO ordered after the prior Board remand. On remand, the RO should confer with the appropriate prison authorities to determine whether the Veteran could be escorted to a VA medical facility for examination by VA personnel, or if there is portable equipment that could be brought to the facility to conduct the testing. It is noted that because some state laws restrict the movement of and access to prison inmates, the above-listed options may not be possible. In such case, documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder. The service connection issue for left ear hearing loss remains intertwined with the right ear rating issue as the missing element to establish service connection is a current disability. Accordingly, it is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for a lumbar spine disability is remanded. The RO obtained a VA spine examination for the Veteran in November 2019. The examiner opined that the current lumbar spine disability was less likely as not incurred in or caused by service, as there is no evidence of traumatic injuries in the Veteran’s service treatment records. The examiner further noted that there are no medical records showing complaints of lumbar pain in the 1980s or 1990s. The examiner did not address the Veteran’s testimony at the April 2018 Board hearing that he did not have a specific injury to his back during service, but rather experienced back pain in the course of his duties carrying heavy equipment. He also testified that he experienced extra strain on his back due to his shin splints, which the Board notes are service-connected disabilities. In other words, the examiner appears to have impermissibly dismissed the Veteran’s reports of back problems in service solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The examiner also failed to address the private treatment records reflecting a history given by the Veteran of back pain since the 1970s. The Board directed the RO to obtain an opinion specifically considering these records; therefore, a remand is necessary to obtain an adequate opinion considering all relevant evidence in the record. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matters are REMANDED for the following action: 1. The RO must take all reasonable measures to afford the Veteran the examinations directed below. This includes determining the appropriate prison official with the authority to make a decision on this matter and obtaining a definitive answer from that official. The RO must confer with the appropriate official to determine whether the Veteran may be escorted to a VA medical facility for examination. If that is not possible, the RO must address the feasibility of scheduling examinations of the Veteran at the prison by either a VA contract examination provider, a VA medical provider, or prison medical providers (at VA expense), using portable testing equipment, if available. If such examinations are feasible, the examinations should be scheduled at the prison. All attempts to obtain an examination must be documented and associated with the claims file. If none of the options are feasible, the RO must fully explain why the examination could not be scheduled. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his right ear hearing loss. If, upon testing, results reflecting left ear hearing loss as defined in 38 C.F.R. § 3.385 are returned, the examiner should offer an etiology opinion regarding the left ear hearing loss. In doing so, the examiner should take into consideration the etiology opinion provided in the March 2013 VA audiological examination. 2. Forward the claims file to an appropriate clinician to determine whether the current lumbar spine disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled in accordance with the considerations noted above regarding incarceration. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disability began in or is otherwise caused by the Veteran’s active service. The examiner should specifically address the Veteran’s lay statements regarding back pain during and since service. The examiner should address any other pertinent evidence of record, including the Veteran’s February 2012 and December 2013 private treatment records reporting ongoing back pain and problems since the 1970s. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely on the basis that they are not recorded in contemporaneous treatment records.   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.