Citation Nr: 21065193 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-02 720 DATE: October 25, 2021 ORDER Entitlement to an initial 10 percent evaluation for right shin splints prior to September 20, 2020, is granted. Entitlement to an initial 10 percent evaluation for left shin splints prior to September 20, 2020, is granted. FINDING OF FACT Prior to September 20, 2020, the Veteran's right and left shin splints were productive of a slight disability, but he did not have nonunion of the tibia and fibula with a moderate knee or ankle disability. CONCLUSION OF LAW 1. The criteria an initial 10 percent evaluation, but no higher, for right shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.559, 4.71a, Diagnostic Code 5299-5262. 2. The criteria an initial 10 percent evaluation, but no higher, for left shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.559, 4.71a, Diagnostic Code 5299-5262. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 2006 to February 2011. This matter comes before the Board on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript is of record. The Board remanded the case for further development in September 2018 and July 2020. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in an October 2020 rating decision, the agency of original jurisdiction (AOJ) increased the separate evaluations for Veteran's right and left shin splints to 10 percent effective from September 20, 2020. Following the issuance of the October 2020 rating decision and supplemental statement of the case (SSOC), the Veteran indicated in a November 2020 written statement that he was satisfied with the decision granting the separate 10 percent evaluations. However, he disagreed with the effective date for the assignment of the 10 percent evaluations and was seeking a 10 percent evaluation prior to September 20, 2020 . As such, there is no remaining case or controversy regarding disability evaluations assigned since September 20, 2020, but the earlier period remains on appeal. The Board also acknowledges that additional evidence was associated with the claims file following the issuance of the October 2020 SSOC. However, the evidence is either not relevant to the issues on appeal or is duplicative of records already considered by the AOJ. Therefore, there is no prejudice in proceeding with adjudication of the issues. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected right and left shin splints are currently assigned separate noncompensable evaluations prior to September 20, 2020, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5262. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. In this case, the Veteran's shin splints are rated by analogy using the criteria for impairment of the tibia and fibula under Diagnostic Code 5262. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5262 pertained to impairment of the tibia and fibula. Under the diagnostic code, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The 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 malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to compensable evaluations for his service-connected right or left shin splint disabilities prior to September 20, 2020. Initially, the Board notes that the Veteran is separately service-connected for left Achilles tendonitis and right foot third tarsal and metatarsal arthropathy. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, the symptomatology and impairment resulting from these other disabilities cannot be considered in evaluating the Veteran's shin splints. During a July 2011 VA examination, the Veteran reported that he experienced pain in his shin with running and that he had weekly-flare-ups of moderate severity that lasted for hours, which limited his activity. He indicated that the flare-ups were precipitated by walking and running and alleviated with rest. He could stand for up to one hour and could walk less than one mile. The examiner did not find bone or joint abnormalities or leg shortening, and it was noted that the Veteran's shin splints did not affect the motion of a joint. Upon examination, the Veteran had a normal gait, and he had normal muscle strength and no muscle atrophy or ankylosis. A June 2016 x-ray did not reveal a lucent fracture line, cortical step-off, periosteal reaction, or dislocation. During a September 2019 VA ankle examination, the Veteran reported that both shins hurt when he is sitting or walking and that it is exacerbated by any physical activity. He indicated that he has flare-ups with any prolonged standing, walking, jumping, hiking, or impact sports, which increase the tenderness. A physical examination revealed normal range of motion for both ankles, and the examiner found that pain did not result in or cause functional loss of the ankles. The Veteran was able to perform repetitive-use testing. There was no additional loss of function or range of motion of the ankles after three repetitions, but there was increased tenderness in his shins. It was also noted that he had increased tenderness during flare-ups. The examiner noted that the Veteran had pain, fatigue, and lack of endurance with repeated use over time and during flare-ups. The examiner indicated that his shin splints did not affect the range of motions of his ankles and knees. A September 2019 VA muscle injuries examiner noted the same reports made by the Veteran. It was also noted that the severity of his shin splints was mild. VA treatment records prior to September 20, 2020, show a history of shin splints, but no related ankle or knee abnormalities. It was noted that he had problems walking and that he had bought arch support inserts. The evidence of record does not show that that the Veteran malunion of tibia and fibula or a knee or ankle disability other than his service-connected left Achilles tendonitis. However, as noted above, the Veteran's shin splints have been rated by analogy. Throughout the time period on appeal, the Veteran has reported experiencing pain that is exacerbated by physical activity. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; see also Pettiti v. McDonald, 27 Vet. App. 415, 424-25 (2015) (holding that the "trigger" for a minimum disability evaluation under § 4.59 is an actually painful, unstable, or malaligned joint). The United States Court of Appeals for Veterans Claims (Court) has held 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. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). In addition, the September 2019 VA examiner found the Veteran's shin splints to be mild. Such a finding is consistent with the criteria for a 10 percent evaluation for a slight disability under Diagnostic Code 5262. Thus, resolving any reasonable doubt in favor of the Veteran, he has been shown to have met the criteria for a 10 percent evaluation for his right and left shin splints under Diagnostic Code 5262. The Board has also considered whether the Veteran is entitled to an initial evaluation in excess of 10 percent. As noted above, the Veteran submitted a November 2020 statement in which he agreed with the assignment of the 10 percent evaluations for his right and left shin splints. Moreover, the evidence does not show that the disability is moderate. As noted above, the Veteran told the July 2011 VA examiner that he only had weekly flare-ups of moderate severity that lasted for hours. Such a statement suggests a lesser degree during the remainder of the time. The examiner also did not find bone or joint abnormalities or leg shortening, and it was noted that the Veteran's shin splints did not affect the motion of a joint. He had a normal gait and normal muscle strength, and there was no muscle atrophy or ankylosis. Moreover, the September 2019 VA ankle examiner indicated that the Veteran's shin splints did not affect the range of motions of his ankles and knees, and the September 2019 VA muscle injuries examiner found that his shin splints were mild. There is also no indication that the Veteran has malunion or nonunion of the tibia and fibula, a knee disability, or an ankle disability other than his service-connected left Achilles tendonitis, and the Veteran's pain is contemplated in the grant of the separate 10 percent evaluation herein. Therefore, the Board finds that the Veteran is not entitled to higher initial evaluations. The Veteran and his representative have not raised any other issues regarding the increased evaluation claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.