Citation Nr: 21062761 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-55 130 DATE: October 12, 2021 REMANDED Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected medial tibial stress syndrome of the left leg is remanded. Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected medial tibial stress syndrome of the right leg is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1991 to May 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony at a November 2019 Board hearing before a Veterans Law Judge who is no longer available to participate in the appeal. The Veteran was notified of his right to request a new hearing before another Veterans Law Judge via a July 2021 notification letter. In August 2021, the Veteran submitted correspondence indicating that he did not wish to appear at another Board hearing. A transcript of the November 2019 Board hearing has been associated with the electronic claims file. Although the Board sincerely regrets additional delay in the adjudication of these claims, a remand is necessary for further development to ensure that there is a complete record upon which to decide the Veteran's claims. 1. Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected medial tibial stress syndrome of the left leg is remanded. 2. Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected medial tibial stress syndrome of the right leg is remanded. At the November 2019 Board hearing, the Veteran testified that his medial tibial stress syndrome (hereafter, referred to as shin splints) in the bilateral legs were far more severe than the physical findings noted at the various VA examinations, private treatment visits, and VA treatment visits currently documented in the record. He testified that his disabilities are managed by his primary care physician, Dr. B, and an orthopedist, Dr. C, and that the conditions have been monitored and evaluated by these providers on a routine basis. Likewise, the record shows that the Veteran is also treated on a regular basis by Dr. L for foot and ankle disabilities. The Veteran has only submitted piecemeal records from these providers. As the appropriate ratings for the Veteran's conditions may be based on any knee or ankle disability resulting from his shin splints, the complete treatment records from these private health care providers are needed to properly assess the credibility and probative value to be assigned to the Veteran's general contentions and hearing testimony. See 38 C.F.R. § 4.71a, Diagnostic Code 5262, pre-February 7, 2021 regulatory amendments. As such, the claims are remanded for the RO to undertake appropriate efforts to obtain the complete private treatment records of Drs. B, C, and L. At the November 2019 Board hearing, the Veteran's representative argued that the July 2019 VA examination was inadequate because it did not sufficiently describe the functional loss attributed to the Veteran's shin splint disabilities and his symptoms of pain and swelling. A review of the VA examination report demonstrates that the VA examiner engaged in a thoughtful analysis of the medical history giving rise to the Veteran's complaints, documented the Veteran's reports of swelling and pain, and documented the Veteran's reports of flare-ups and functional loss. Moreover, the Board finds the VA examination findings were similar to the 2018 findings from the Veteran's private orthopedist, Dr. C. When assessing the severity of the Veteran's bilateral shin splints, the VA examiner indicated that these disabilities affected the range of motion of the knees. This assessment requires further explanation, as the VA examiner found no abnormal range of motion in the left knee, and it is unclear whether the range of motion limitations described in the right knee were the result of the diagnosed right knee meniscal tear/degenerative arthritis or the Veteran's shin splints. Based on this deficiency and the Veteran's November 2019 hearing testimony alleging a worsening of his conditions, the RO is requested to obtain an updated VA examination that addresses the current severity of the Veteran's disabilities, with clear delineations regarding the resulting functional impacts. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks entitlement to service connection for a left knee disability. At the May 2013, June 2017, April 2019, and July 2019 VA examinations, the left knee was evaluated as having normal range of motion without pain and no diagnoses were provided. Likewise, the available treatment records from the Veteran's primary care physician, Dr. B, and his orthopedist, Dr. C, document no left knee diagnoses during the appellate period. The March 2018 treatment record from Dr. C included a physical examination of the left knee, which was described as normal, with full range of motion, ligamentous stability, and no tenderness to palpation. There was no effusion, erythema, soft tissue swelling, lymphadenopathy, or any muscle strength or sensory deficits. Patellar examination was normal and without patellar apprehension. Despite the complete dearth of objective findings from the VA examiners and the Veteran's own treating orthopedist regarding a left knee diagnosis, the Veteran submitted a private nexus opinion from Dr. MF in November 2019. In this opinion, Dr. MF opined that the Veteran had a left knee condition manifested by pain with motion, swelling, and instability that was a direct result of the Veteran's service-connected bilateral shin splints and right knee disability. He stated that the Veteran's gait and postural instability have been altered over the years by the Veteran's service-connected shin splints and right knee disability and it has resulted in wear and tear on the Veteran's other joints, to include the left knee. At this point in time, the Board finds the medical opinion of Dr. MF is insufficient to resolve the Veteran's appeal. Dr. MF stated that he was familiar with the Veteran's left knee issues, yet his report did not contain any documented physical examination findings regarding the left knee or any treatment notes, and he did not discuss the findings from the Veteran's orthopedist, Dr. C, discussed supra, which demonstrated a normal left knee examination. This calls into question whether Dr. MF's medical opinion is fully informed by the Veteran's relevant medical history. Additional information in the claims file shows that Dr. MF is the Veteran's sleep doctor, and it is unclear why a sleep physician would be clinically evaluating any orthopedic conditions in the Veteran's left knee. Accordingly, the Board finds that the complete treatment records of Dr. MF must be obtained to further assess the credibility and probative value of the proffered medical opinion. Furthermore, Dr. MF stated that the Veteran's prevalent altered gait due to his service-connected shin splints and right knee disability has resulted in degeneration of other joints. This explanation mirrors the Veteran's lay assertions on appeal; however the piecemeal treatment records currently in the record from Drs. B, C, and L do not document clinical findings showing a chronic and persistent altered gait. While Dr. C noted a right knee antalgic gait at the March 2018 assessment, the September 2018 assessment showed a nonantalgic gait. The complete treatment records of Drs. B, C, and L should provide additional information regarding the frequency of any chronic gait impairments experienced by the Veteran. Upon remand, the RO is also requested to obtain any additional VA treatment records from March 2021 to the present. ONLY IF receipt of the outstanding private and VA treatment records confirms the presence of a current left knee disability during the appellate period and chronic gait disturbances, should a VA examination be conducted to assess whether the Veteran's current left knee disability is proximately due to, the result of, or aggravated by the Veteran's service-connected bilateral shin splints, right knee, and/or bilateral foot and ankle disabilities. See 38 C.F.R. § 3.310. At the November 2019 Board hearing, the Veteran also provided testimony indicating that his claimed left knee disability began during service and has continued to the present. The Veteran's service treatment records do not document any left knee complaints, despite being seen for similar complaints in the right knee, and the record shows no objective left knee impairments in the 20 years following separation from service. The March 2018 private treatment records from Dr. C document the Veteran's lay reports complaining of "bilateral knee pain that began 20 years ago" but this is not an indication of diagnosis or etiology to service, as it is simply the physician documenting the Veteran's complaints. See Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). Moreover, it is possible that the Veteran was describing his bilateral shin splint symptoms to Dr. C rather than knee complaints, as this more closely aligns with the Veteran's documented medical history. For these reasons, the elements of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) are not satisfied for the purposes of seeking a direct service connection opinion in this matter. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records of Drs. B, C, L, and MF. Make two requests for the authorized records from these health providers unless it is clear after the first request that a second request would be futile. 3. Schedule a VA examination to assess the Veteran's lower extremities, to include the presence of any clinically significant left knee disabilities. The VA examiner is requested to assess the severity of the Veteran's shin splints utilizing the regulatory criteria found in Diagnostic Code 5262 both prior to and after the February 7, 2021 regulatory amendments. The VA examiner is requested to specify whether any limitation of motion in the knees or ankles is the direct result of the Veteran's shin splints versus any other separate and distinct disabilities impacting the knees or ankles. ONLY IF the treatment records identified above confirm a history of chronic gait disturbances AND the treatment records identified above or the VA examiner's findings confirm the presence of a current left knee disability during the appellate period, should a VA medical opinion be obtained to assess the nature of the Veteran's left knee disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability is proximately due to or the result of the Veteran's service-connected bilateral shin splints, right knee, and/or bilateral foot/ankle disabilities, to include chronic gait impairment? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability was aggravated by, i.e., underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected bilateral shin splints, right knee, and/or bilateral foot/ankle disabilities, to include chronic gait impairment? See Ward v. Wilkie, 31 Vet. App. 233 (2019). The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The VA examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience and medical expertise; established medical principles; and citation to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.