Citation Nr: 21004985 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-00 235 DATE: January 28, 2021 ORDER Entitlement to a compensable rating for left leg shin splints is denied. Entitlement to a compensable rating for right leg shin splints is denied. Entitlement to a 10 percent rating, but no higher, for gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial 10 percent rating, but no higher, for bilateral pes planus is granted. Entitlement to a rating in excess of 10 percent from February 15, 2017 for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's left and right leg shin splints are not manifested by at least slight knee or ankle disability. 2. Throughout the period on appeal, the Veteran's GERD has been manifested by pyrosis and reflux. 3. Throughout the period on appeal, the Veteran’s bilateral pes planus symptoms in their totality, reflect at worst, moderate pes planus. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left leg shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. 2. The criteria for a compensable rating for right leg shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. 3. The criteria for an initial 10 percent rating for GERD, and no higher, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346. 4. Throughout the entire period on appeal, the criteria for a 10 percent rating for bilateral pes planus, but no higher, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 5. From February 15, 2017, the criteria for a rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to March 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. These matters were remanded by the Board in April 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) 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. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Bilateral shin splints The Veteran was granted service connection for bilateral shin splints in an August 2015 rating decision and assigned an initial noncompensable rating, effective April 1, 2015. The Veteran's bilateral shin splints are rated under Diagnostic Code 5299-5262 as noncompensable. Diagnostic Code 5262 contemplates impairment of the tibia and fibula and provides a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Upon VA examination in March 2015, the Veteran reported that he began to experience persistent bilateral knee pain and shin pain in 2000. The Veteran engaged in repetitive physical activities and running using both knees and upon going to medical for an evaluation and having diagnostic imaging performed, was diagnosed with shin splints. The Veteran reported having sharp and deep pain where it prevented him from moving around and walking around. The examiner noted that the Veteran had shin splints, but noted it did not affect the range of motion of the knees or ankle. The examiner noted symptoms of pain and discomfort after repetitive use in the lower half of the posteromedial border of the tibia, beginning as a dull ache and followed by a gradually worsening pain. The examiner did not note any instability or history of recurrent subluxation. Joint stability testing was normal. In June 2017 the Veteran was afforded another VA examination for his lower legs and knees. The Veteran was diagnosed with shin splints of both sides. The examiner noted that the shin splints were not currently symptomatic. The examiner noted that the Veteran had recurrent shin splints of both sides, but noted that neither side affects the range of motion of either knee or either ankle. There were no described symptoms. There was no notation of any impact on employment of the shin splint disabilities. The Veteran had joint stability testing performed, which was normal. The Veteran was afforded another VA examination in November 2018 for his knees and lower leg conditions, including his ankles. At that time his diagnosis of bilateral shin splints was noted, but the examiner found that there was no effect on either knee or ankle due to the diagnosis of shin splints. Joint stability testing was performed and was normal. The examiner noted that the Veteran used a brace as an assistive device for regular use due to his lower leg/knee conditions. In September 2019 the Veteran was afforded another VA examination for his service connected shin splints. At that VA examination the examiner noted the prior diagnosis of shin splints, finding that they only occurred with running. He found that the Veteran currently had no symptoms and no tenderness to palpation. Joint stability testing did not reveal any instability of the joints. The Veteran testified at a Board hearing in September 2019, at which time he testified that he wears compression for his shin splints but when he takes them off he feels everything aggravated even more. See September 2019 Board Hearing Transcript p.9. The Veteran further testified that he was able to walk maybe 100 yards or so for 10 minutes before he has pain due to his shin splints. The Veteran was most recently afforded a VA examination for his shin splints in March 2020, at which point a diagnosis of shin splints was not noted, with no symptoms associated with any shin splints. The preponderance of the evidence of record is against the assignment of a compensable rating for the left and right leg shin splints. This is so because the Veteran's disability picture does not approximate slight knee or ankle disability needed to support the assignment of the next highest (10 percent) rating under Diagnostic Code 5262. The examiners have not found that his condition affected the motion of any joint during the March 2015, June 2017, November 2018, September 2019 or March 2020 VA examinations. The Veteran has reported some pain in his shins with running or prolonged walking and the Board has also considered the applicability of 38 C.F.R. § 4.59. In Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), the Court found that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements." Periarticular is defined as “around a joint.” Dorland’s Illustrated Medical Dictionary 1411 (32nd Ed. 2012). However, shin splints are defined as “an overuse injury characterized by strain of the flexor digitorum longus muscle occurring in athletes, with pain along the shin.” Id. at 1753. Additionally, shin is defined as “1. The crest or anterior edge of the tibia. 2. The anterior aspect of the lower limb below the knee.” Id. at 1703. As shin splints do not pertain to joints or periarticular regions, 38 C.F.R. § 4.59 is not applicable. The Board observes that the Veteran is separately compensated for left and right knee strain, each rated as 10 percent disabling under DC 5260, and right and left lower extremity radiculopathy, each rated as 10 percent disabling under DC 8520. Both knees are rated as 10 percent based on consideration of the provisions of 38 C.F.R. § 4.59 and DeLuca v. Brown and Mitchell v. Shinseki. The Veteran’s knee range of motion findings were not found to meet the criteria for a compensable rating under either DC 5260 or 5261, and were rated as 10 percent disabling based on painful motion. See August 2015 rating decision. Thus, painful motion of the knees is being compensated. As noted above, Diagnostic Code 5262 was used by analogy to rate the Veteran's left and right leg shin splints. This action was taken because shin splints are not listed as a specific disability under VA's Rating Schedule. When a disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. § 4.20. Given the foregoing, the Board has also considered whether a higher rating would be warranted if rated analogous to muscle injury instead. However, under the rating criteria for muscle injury of the leg, a compensable rating would require at least moderate muscle injury, which is clearly not shown by the evidence. See 38 C.F.R. § 4.73, Diagnostic Codes 5310-5312. Notably all VA examinations noted muscle strength testing of 5/5 bilaterally for ankle plantar, ankle dorsiflexion, knee extension, and knee flexion. The Board finds that moderate disability of the muscle has not been demonstrated. In summation, the preponderance of the probative evidence supports the currently assigned noncompensable ratings for bilateral shin splints. GERD The Veteran was granted service connection for GERD and assigned an initial noncompensable rating effective April 1, 2015. The Veteran's GERD has been assigned a non-compensable rating under DC 7399-7346. GERD is rated by analogy. 38 C.F.R. § 4.27. Thus, in this case, GERD is evaluated under the diagnosis code for hiatal hernia, DC 7346. See 38 C.F.R. § 4.114, DC 7346. Under DC 7346, a 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned where there are two or more of the symptoms of a 30 percent evaluation with less severity. The Veteran was afforded a VA examination in March 2015 for GERD. At that examination the Veteran reported that he began to experience persistent acid reflux symptoms in 2003. The Veteran was diagnosed with GERD in service and recommended conservative management with over the counter medication. The Veteran noted that over the years persistent symptoms of GERD continued, necessitating medical re-evaluation. The Veteran was then prescribed daily oral Nexium which helped. The Veteran noted that he currently has active symptoms but that his GERD was controlled with a daily oral dose of Nexium. The examiner noted that the Veteran’s treatment plan included taking continuous medication for the diagnosed condition. The Veteran noted that the Veteran had pyrosis and reflux. He did not note any other recurrent symptoms. Diagnostic testing was not performed. The Veteran’s esophageal condition was not noted as impacting his work. Pertinently, although the record demonstrates that medication is generally effective in managing the Veteran's symptoms, the Board acknowledges that the Court has held that, where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). Therefore, the Board finds that if the Veteran did not take Nexium to manage his GERD, he would evidence pyrosis and reflux. As noted above, a 10 percent rating is warranted under Diagnostic Code 7346 when two or more of the symptoms for the 30 percent evaluation of less severity are evidenced. Pyrosis and regurgitation are two symptoms listed under the 30 percent criteria. As noted, in the Veteran’s VA examination he reported experiencing pyrosis and reflux. Thus, the Board finds that the Veteran is entitled to a 10 percent rating for his GERD. The Board further finds that a disability rating in excess of 10 percent is not warranted. In this regard, as discussed above, a 30 percent rating is warranted when the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Crucially, the only symptoms noted by the Veteran during the period under consideration involve pyrosis and regurgitation. As such, the Board finds that a 30 percent disability rating for the Veteran's GERD is not warranted. The Board further finds that a 60 percent rating is not warranted under Diagnostic Code 7346 as the evidence during the period under consideration does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Bilateral Pes Planus The Veteran was granted service connection for bilateral pes planus in an August 2015 rating decision and assigned an initial noncompensable rating effective April 1, 2015. Thereafter, his rating was increased to 10 percent effective February 15, 2017. Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendon Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. In March 2015 the Veteran was afforded a VA examination for his bilateral pes planus. The Veteran reported that he began to experience persistent bilateral foot pain in 2013. The Veteran noted that currently he has active intermittent symptoms of pes planus with plantar fascitis but that he was treating it conservatively. He does use bilateral foot soles occasionally. He reported flare ups of the foot, but did not note that flare ups impacted the function of the foot. The Veteran reported functional loss or functional impairment of the foot, specifically due to pain which limited walking. The Veteran reported pain on the use of the feet, with pain accentuated upon manipulation. Both sides were indicated as being affected. He did not have characteristic calluses. He did report use of arch supports of both feet. The examiner found that the Veteran did not have extreme tenderness of plantar surfaces of one or both feet, but had decreased longitudinal arc height of both sides upon weight bearing. There was no objective evidence of marked deformity of either foot and no marked pronation of either foot. There was no noted lower extremity deformity other than pes planus causing alteration of the weight bearing line. The Veteran did not have noted inward bowing of the achilles tendon or inward displacement or severe spasm of the achilles tendon on manipulation of one or both feet. The examiner noted the Veteran’s other conditions of the feet, including bilateral fascitis and bilateral calcaneal spurs. The examiner noted pain upon physical examination, especially upon movement. The examiner noted the Veteran’s use of arch supports on an occasional basis as an assistive device. A February 15, 2017 VA treatment entry indicated bilateral arch tenderness and at insertion of achilles. There was no swelling or redness. The Veteran reported that his orthotics were not helpful. The Veteran was afforded another VA examination in June 2017 for his bilateral feet. At that examination the Veteran reported that the location of foot pain is at the bottom of the toes, bottom of the arch and the bottom of the heels. It is symmetric and simultaneous and occurs daily after prolonged standing. The Veteran reported foot pain upon the examination, and reported pain upon use of the feet. There was no pain on manipulation of the feet and no indicated swelling upon use. The Veteran did not have characteristic callouses but noted the use of orthotics of both feet. There was no pain upon physical examination of either foot but pain was noted bilaterally upon prolonged standing. The Veteran also reported use of insoles on a regular basis. In November 2018 the Veteran was afforded another VA examination for his feet. At that examination he reported pain in both plantar fascia. He also had pain on the medial aspect of both great toes. Treatment has included orthotics that helped a little, but he still has pain. He has had no injections or surgery. The Veteran reported sharp pain of the feet, with flare ups that impact that function of the feet. He noted that he avoids prolonged standing. The Veteran did not report pain on use of the feet but did report pain on manipulation of the feet. There was no indication of swelling on use and the Veteran did not report characteristic calluses. The Veteran reported the use of arch supports of both feet. The Veteran did not report extreme tenderness of plantar surfaces of one or more feet. The Veteran had decreased longitudinal arch height of both feet. There was no noted lower extremity deformity other than pes planus causing alteration of the weight bearing line and the Veteran did not have inward bowing of the achilles tendon of either foot. Morton’s neuroma was not noted and hallux valgus or hallux rigidus was also not noted. In addition to the pes planus, the Veteran noted mild pain over the plantar fascia and medial great toes of mild severity. In September 2019 the Veteran was afforded his most recent VA examination for his bilateral pes planus. The Veteran stated his current symptoms are chronic daily bilateral foot arch and heel pain. He also noted that he uses arch supports. The Veteran reported that usually on a daily basis he feels like someone is sticking something up his foot. He reported flare ups impacting the function of his foot, specifically sharp throbbing pain that comes with walking or standing too much, lasting a few hours and improving with rest. He noted this occurs pretty much daily. The Veteran reported functional loss or functional impairment of the feet, noting that he avoided walking or just being on his feet for too long. The Veteran reported pain on use of both feet with the pain accentuated on use of both feet. The Veteran did not have pain on manipulation of the feet and there was no indication of swelling on use. The Veteran did not have noted characteristic callouses. The Veteran reported use of arch supports of both feet with no extreme tenderness of plantar surfaces of either foot. There was no objective evidence of marked deformity of either foot and no marked pronation of either foot. The examiner noted that the weight bearing line fell over to the medial or great toe of both feet. There was no noted extremity deformity other than pes planus causing alteration of the weight bearing line, and the Veteran did not have inward bowing of the achilles tendon and also did not have marked displacement and severe spasm of the Achilles tendon. Morton’s neuroma was not noted in either foot, and hallux valgus, hallux rigidus and claw foot were also not noted. Pain was noted upon physical examination, specifically pain with any excessive weight bearing. There was also noted pain in the foot during activities such as walking, jogging and running. The examiner did not note that the Veteran used any assistive devices. The Board finds that for the entire period on appeal, the Veteran’s bilateral pes planus should be rated at 10 percent, but no higher. However, a higher rating is not warranted. At no point during the appeal does his disorder reflect severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), indication of swelling on use, or characteristic callosities. Although the Veteran reported that he had pain on manipulation of use accentuated, when considered as a whole, flatfoot with objective evidence or marked deformity was not shown. The Veteran’s March 2015, June 2017, November 2018 and September 2019 examinations have shown bilateral foot pain, but have not shown any objective evidence of marked deformity, or any indication or swelling on use or characteristic callosities. The Board takes note of the January 2018 notation of pain upon manipulation. However, the Board finds that as there is no mention of marked deformity, or any indication of swelling on use or characteristic callosities the Veteran has not shown the necessary criteria for a severe rating for bilateral pes planus. Thus, a 10 percent rating, but no higher, throughout the appeal period is granted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.