Citation Nr: 21004718 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-15 204A DATE: January 28, 2021 ORDER Entitlement to service connection for hepatitis B is denied. Entitlement to an increased evaluation of 20 percent, but no higher, for left leg shin splints from May 25, 2017 is granted. Entitlement to an increased evaluation of 20 percent, but no higher, for right leg shin splints from June 21, 2018 is granted. FINDINGS OF FACT 1. The weight of evidence is against a finding that the Veteran has had a hepatitis disability of any type at any time during the period on appeal. 2. From May 25, 2017, the Veteran’s service-connected left leg shin splints are productive of painful motion, weakness, and swelling that has worsened since the previous examination, more nearly approximating that of moderate disability; marked disability of the lower left leg is not shown. 3. From June 21, 2018, the Veteran’s service-connected right leg shin splints are productive of painful motion, weakness, and swelling that has worsened since the previous examination, more nearly approximating that of moderate disability; marked disability of the lower right leg is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a hepatitis B disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. From May 25, 2017, the criteria for the assignment of an increased disability rating of 20 percent, but no higher, for left leg shin splints have been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2020). 3. From June 21, 2018, the criteria for the assignment of an increased disability rating of 20 percent, but no higher, for right leg shin splints have been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to May 1991, March 1994 to October 1995, and September 1998 to July 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded the issues on appeal for additional development in January 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In July 2018, the RO granted an increased rating to 10 percent, effective May 25, 2017 for left leg shin splints, and an increased rating to 10 percent, effective June 21, 2018 for right leg shin splints. In April 2020, the RO granted an increased rating to 10 percent for left leg shin splints from August 13, 2012 to May 25, 2017, and an increased rating to 10 percent for right leg shin splints from August 13, 2012 to June 21, 2018. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. In May 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board notes the presence of a separate legacy appeal by this Veteran also active before the Board, but as the Veteran requested a Board hearing for those issues, that other appeal cannot be merged with this appeal, and the Board will proceed with the adjudication of the above-listed issues. The Veteran’s other appeal will be adjudicated separately at a future date after the hearing has been held for those issues. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran has noted in lay statements as recent as October 2020 that he currently works as a truck driver, and recent VA medical evidence confirms that. The Board thus considers that a TDIU is not inferred by the record. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for a Hepatitis Disability Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Proof of a current disability is a threshold to establishing service-connection for any claimed 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). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis During May 2019 testimony with the undersigned VLJ, the Veteran asserted that he was told he had hepatitis B while during active service when he attempted to donate blood in 1990. The Veteran noted he filed a claim for service connection because of persistent abdominal troubles that he associates with what he perceived to be a hepatitis diagnosis from active service. The Veteran’s service records are silent for any hepatitis or other liver condition during any period of active or inactive service, and there is no mention of a blood donation or any problems associated with a blood donation. The Veteran received a VA examination for his hepatitis claim in October 2020. The examiner noted the Veteran’s claim that he was diagnosed during military service when attempted to donate blood. The Veteran reported a previous blood transfusion, accidental exposure to blood, and high-risk sexual activity. He also noted alcohol abuse and that he was told he had liver damage approximately five years ago. The Veteran reported symptoms of daily, sudden, and sharp abdominal pain, with vomiting every other day, and that he feels fatigue every day. The Veteran also reported rashes on his face and sometimes his arms. The Veteran indicated he consumes 5-6 cans of beer every day. The examiner noted the Veteran’s service treatment records were completely silent for any hepatitis or other liver conditions during active service or his Guard service. This examiner declined to make a diagnosis of any form of hepatitis, to include hepatitis A, hepatitis B, or hepatitis C. The examiner also declined to make a diagnosis of cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Laboratory studies performed as part of this examination showed negative for hepatitis A (IgM), hepatitis B surface antigen or core antibody, or hepatis C antibody, genotype, or viral titers. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s claimed hepatitis disability was incurred in or caused by a service injury, incident, or illness. The examiner’s rationale was that no diagnosis of any hepatitis disability, or any other liver disability, has been made for this Veteran. The laboratory testing for all types of hepatitis A, B, and C were all non-reactive, suggesting no previous exposure to hepatitis B or C. The examiner acknowledged that it was possible the Veteran was exposed in the past to hepatitis A based on his reported history, 1. Entitlement to service connection for hepatitis B The Board finds the October 2020 examination to be highly probative as it is sound and thorough, and had sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting medical literature and clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of a hepatitis or other liver disability by any VA medical examiner or other medical examiner from any source. Thus, the Veteran’s claim does not meet the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board notes that the existence of a current disability at any time during the current appeal period is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that, at some time during the current appeal period, the Veteran has the disability for which benefits are being claimed. Here, however, as noted above, the competent and credible evidence of record does not establish that, at any time during the current appeal period, the Veteran has had a diagnosis of a hepatitis or other liver disability. In this regard, the Board notes that Congress has specifically limited service connection to instances where there is current disability (during the current appeal period) that has resulted from disease or injury. 38 U.S.C. § 1110. In the absence of a current disability during the current appeal period, the analysis ends, and the claim for service connection for a hepatitis disability cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran’s claimed hepatitis B disability. Here, no examiner or medical professional has made a diagnosis of a current disability related to the Veteran’s claimed hepatitis or any other liver disability. The service treatment records are silent for any complaints or symptoms relating to any liver or hepatitis disability up to the last service medical record of July 2000. The Veteran reported he attempted to donate blood in 1990 and was told he has hepatitis B, but the Veteran has approximately 10 years’ worth of military medical records after that blood donation attempt, up through July 2020, that do not note any hepatitis or other liver disease, or related symptoms not otherwise accounted for. The Board notes the statements from the Veteran regarding his claimed hepatitis B disability. Generally, lay evidence is probative with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. However, a layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). To the extent that the Veteran can observe symptoms in his body, to include symptoms related to a hepatitis or other liver disability, he is competent to comment on and endorse these symptoms. However, the determination of the etiology of a hepatitis or other liver disability is a complex medical determination beyond his competence. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of a hepatitis or other liver disability by any VA or private medical examiner. Thus, the Veteran’s claim fails the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Because the Veteran has no in-service or related disease or injury that occurred in service or within one year after leaving active service that is not already accounted for in his other service-connected disabilities, the Veteran fails the second prong of the test for entitlement to direct service connection for a hepatitis or other liver disability. See id. The Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) (“pain alone can serve as a functional impairment and therefore qualify as a disability”). That Federal Circuit decision qualified that holding, however: “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain…. To establish the presence of a disability, the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity.” Id. at 1365. In this case, however, the VA examinations conducted during the pendency of this appeal in October 2020 did not show any symptoms of a hepatitis or other liver disability. The Veteran has received an examination for his hepatitis and other potential liver disabilities, but there has been no observation of symptoms for a any hepatitis or other liver condition. The examiner determined that any pain, weakness, fatigability, or incoordination did not limit any functional ability. The examiner determined there was insufficient current objective pathology for the claimed hepatitis or other liver disability, and thus the Veteran does not have a current diagnosis associated with any hepatitis or other liver condition. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed hepatitis or other liver condition were not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a hepatitis or other liver condition, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. 2. Entitlement to an increased evaluation in excess of 10 percent for left leg shin splints from May 25, 2017 3. Entitlement to an increased evaluation in excess of 10 percent for right leg shin splints from June 21, 2018 The Veteran is seeking increased ratings for his service-connected left and right leg shin splints disability. The Veteran’s bilateral shin splints are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262 which provides ratings for impairment of the tibia and fibula. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability; a 30 percent rating is warranted for malunion with marked knee or ankle disability; and a 40 percent rating is warranted for nonunion with loose motion, requiring a brace. 38 C.F.R. § 4.71a. Descriptive words such as “slight,” “moderate,” and “marked” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran was granted increased ratings for his lower leg shin splints in a January 2020 Board decision, which were implemented in an April 2020 RO rating decision. The left leg shin splints were evaluated at 10 percent, but no higher, from the effective date of service connection of August 13, 2012 to May 25, 2017, and the right leg shin splints were evaluated at 10 percent, but no higher, from August 13, 2012 to June 21, 2018. However, due to the statements of the Veteran during his May 2019 Board hearing that his bilateral shin splints had worsened, the appeal was remanded to evaluate the nature and severity of his shin splints after May 25, 2017 and June 21, 2018, respectively. The Veteran received a VA examination for his lower legs in July 2018. This VA examiner continued the previous diagnoses of shin splints for each the right and left lower legs, and noted the Veteran’s statement that his shin splints for each leg have worsened since the last examination. The Veteran reported sharp, nagging pain in the knees and lower legs every day, and that when he overexerts himself, there is a piercing pain in each lower leg. The Veteran also reported random flareups even when he is laying down and not placing weight on his lower body or exerting any effort. The Veteran noted his lower leg pain makes it difficult to squat or run. While the examiner measured limited ranges of motion for a related left knee examination, he stated that the Veteran’s shin splints did not affect the knee range of motion on either leg. The examiner did consider the Veteran’s shin splints in each leg to have worsened since the last examination based on the presence of increased pain. The Veteran received another VA examination for his knees and lower legs in October 2020 that was uploaded to the claims file in November 2020. This examiner continued previous diagnoses of shin splints in each leg, and also noted diagnoses of right knee strain and left side degenerative arthritis. This examiner specifically noted the shin splint conditions had progressed and worsened since the last VA examination. The Veteran specifically noted intermittent bilateral shin pain, with occurrences twice a week on average and the pain at 7 on a scale of 10 rising to 10 at its worst. The Veteran noted that sitting and standing for long periods trigger his shin pain. The Veteran reported that over-the-country topical analgesics and “Ben-Gay” type medications do not help. The Veteran also reported that a knee brace, physical therapy, or home exercise did not help. The Veteran reported flare-ups that happen randomly without specific triggers lasting about 10-15 minutes, about 4 times a week. For the Veteran’s left leg shin splints and his right leg shin splints, the Board finds that for the pertinent periods on appeal, an increased rating of 20 percent, but no higher, is warranted under Diagnostic Code 5262 from May 25, 2017, and for his right leg shin splints, from June 21, 2018. While the Board notes formal diagnoses of medial-tibial stress syndrome as the disability affecting each of the Veteran’s lower legs, and that range of motion is not the measurement of functional loss in this case, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. Because the VA medical examiners and the Veteran through his own testimony have noted high degrees of pain in the Veteran’s lower legs, as due to his diagnosed shin splints, the Board finds that a compensable rating of 20 percent, but no higher, is appropriate for the Veteran’s left and right leg shin splint disabilities for the pertinent periods. The Board noted the degree of functional loss caused by the shin splint pain affected the Veteran’s ability to stand for extended periods or walk, and the Veteran, who works as a truck driver, also testified to the fact that his shin splint pain sometimes forced him to stop his truck and get out of his cab. However, a higher rating of 30 percent for each the left lower leg and right lower leg shin splints is not warranted for this period. The Veteran is able to maintain most range of motion of his lower legs even after repetitive use testing, and he has not described any additional limitation or further increase in disability in this period that could reasonably considered as a “severe” lower leg disability for either leg. For the foregoing reasons, then, the Board finds that a 20 percent rating for left leg shin splints is warranted for the period from May 25, 2017, and a 20 percent rating for right leg shin splints is warranted for the period from June 21, 2018. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s leg disabilities other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond that discussed, as the Veteran has had a stable level of symptomatology throughout the appeal period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.