Citation Nr: 21067265 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-49 928 DATE: November 3, 2021 ORDER Service connection for right shin splints is denied. Service connection for left shin splints is denied. For the increased rating period on appeal, a rating of 40 percent for right lower extremity radiculopathy is granted. For the increased rating period on appeal, a rating of 40 percent for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral shin splints. 2. There was no shin splint injury, disease, or event during service. 3. The currently diagnosed shin splint disorder did not have its onset in service and is not otherwise etiologically related to service. 4. For the increased rating period on appeal, the right and left lower extremity nerve disabilities have been manifested by moderately severe incomplete paralysis of the affected nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for right shin splints are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for left shin splints are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal, the criteria for a 40 percent disability rating, and no higher, for right lower extremity radiculopathy have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal, the criteria for a 40 percent disability rating, and no higher, for left lower extremity radiculopathy have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1987 to May 1998. In the September 2017 substantive appeal (on a VA Form 9), the Veteran requested a videoconference hearing. In correspondence received in December 2019, the Veteran withdrew the hearing request. As the request is deemed withdrawn, the Board may proceed with adjudication. 38 C.F.R. § 20.704(d). 1. Service Connection for Right Shin Splints is Denied. 2. Service Connection for Left Shin Splints is Denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. The Veteran generally seeks service connection for a shin splint disorder. The May 2017 VA examination report reflects the Veteran indicated having shin splints during service. The evidence shows a current diagnosis of bilateral shin splints. See May 2017 VA examination report. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that there was a shin splint injury or disease during service. The service treatment records are complete and contain no evidence of injury, complaints, symptoms, findings, diagnosis, or treatment related to shin splints. There is no indication from the service treatment records that the Veteran ever sought treatment for any shin or shin splint injury, or reported any history of or complaints of shin splints during service. The January 1998 report of medical history reflects the Veteran did not report any shin disorder, to include shin splints. The January 1998 service separation examination report reflects the lower extremities and feet were clinically evaluated as normal. A shin splint disorder is a condition that would have ordinarily been recorded during service during the normal course of treatment or examination for almost any disorder. Similarly, the service treatment records, which are complete, reflect that the Veteran was treated for other symptoms and disorders during service, of which he did complain and seek treatment, though he did not report any such related problems or symptoms regarding shin splints. Such in-service complaints reported or for which the Veteran knew how to, and did, seek treatment include back pain (on numerous occasions), diarrhea, a nodule on the chin, sore throat, and ingrown beard hair. As such, the complete service treatment records in this case, which were generated contemporaneous to service, are likely to accurately reflect the Veteran's physical condition. The service treatment records in this case are of significant probative value because the Veteran was treated on multiple occasions for the complaints or disorders listed above, so would similarly have reflected any complaints or treatment for a shin splint disorder had such occurred during service; therefore, the absence of any complaints or symptoms or findings or treatment during service is some evidence that weighs against a finding that a shin splint injury or shin symptoms occurred during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Regarding the theory of direct service connection, the Board finds that the weight of the evidence shows no in-service injury or disease or even event to which a current disability could be related. As analyzed above, the weight of the evidence shows no shin splint disorder injury or disease or symptoms during service. The May 2017 VA examiner also opined that the currently diagnosed shin splints were unrelated to service. The May 2017 VA examiner reasoned that the service treatment records did not reflect treatment for shin splints and that the Veteran did not seek treatment for shin splints until many years after separation from service. This is a factually accurate history that the VA examiner relied upon that is also consistent with the Board's factual findings in this case. Insomuch as the Veteran asserts that the shin splint disorder is directly related to service, the Board finds that the Veteran is not competent to relate the currently diagnosed shin splints that began after service to active service, especially under the facts of this case where there was no in-service injury or disease or symptoms until years after service. While the Veteran is competent to describe symptoms he experiences at any time, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation of a complex medical condition such as shin splints and their relationship to active service years earlier, which requires specialized medical knowledge of the various possible etiologies of shin splints, especially in the context of this case where a shin splint disorder is first shown and diagnosed after separation from service. Based on the foregoing, the Board finds that the weight of the evidence demonstrates no in-service injury or disease, and that the currently diagnosed shin splints are not related to service many years earlier. For these reasons, service connection must be denied. 3. Increased Rating for Right Lower Extremity Radiculopathy 4. Increased Rating for Left Lower Extremity Radiculopathy Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For the rating period on appeal, the right and left lower extremity nerve disabilities have been rated as 20 percent disabling under Diagnostic Code 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. The Veteran contends generally that the right and left lower extremity radiculopathies have been manifested by more severe symptoms and impairment than contemplated by the separate 20 percent disability ratings assigned. Various statements reflect the Veteran has indicated that the lower extremity radiculopathies have manifested as "severe" symptoms. See June 2018 statement. After a review of the lay and medical evidence, the Board finds that, for the increased rating period on appeal, the criteria for a 40 percent disability rating for the right and left lower extremity disabilities under Diagnostic Code 8520 are more nearly approximated. Throughout the rating period, the nerve disabilities have been manifested by symptoms and findings that approximate moderately severe incomplete paralysis. The evidence includes January 2018 and July 2019 private examination reports reflecting the private examiner assessed severe bilateral lower extremity pain, severe numbness, and severe parenthesis and/or dysesthesias. The January 2018 and July 2019 private examiner also assessed that the bilateral lower extremity radiculopathies were "severe." Given the evidence of decreased sensation and numbness in the lower extremities since at least 2018, and the Veteran's reports of persistent symptoms of pain over the years, the Board resolves reasonable doubt in the Veteran's favor to find that the right and left lower extremity radiculopathies have more nearly approximated moderately severe incomplete paralysis, warranting a higher 40 percent rating for the increased rating period. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code, 8520. See January 2018 and July 2019 private examination reports. The Board also finds that the criteria for a disability rating in excess of 40 percent for the right and left lower extremity disabilities have not been met or more nearly approximated under Diagnostic Code 8520. Throughout the rating period, the nerve disabilities have not been manifested by severe incomplete paralysis with marked muscular atrophy, and the Veteran has not alleged otherwise. The January 2018 and July 2019 private examination reports reflect that the private examiner did not discern muscular atrophy, and the Veteran has not alleged otherwise. In addition, no examiner, VA or private, has assessed muscular atrophy. Based on the above, the Board finds that disability ratings in excess of 40 percent are not warranted under Diagnostic Code 8520 for both the right and left lower extremity nerve disabilities. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.