Citation Nr: 21069328 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-28 423A DATE: November 18, 2021 ORDER Entitlement to an initial disability rating of at least 10 percent, for shin splints of the right lower extremity, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for right shoulder disorder is remanded. Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for shin splints of the left leg is remanded. Entitlement to an initial disability rating in excess of 10 percent for shin splints of the right lower extremity is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's shin splints of the right lower extremity (RLE) have been characterized by painful motion. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of at least 10 percent for shin splints of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1993 to January 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimony before the Board during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The most appropriate diagnostic code for evaluating the Veteran's shin splints is Diagnostic Code 5262, pertaining to impairment of the tibia and fibula. Shin splints are not specifically listed in the rating schedule. An unlisted condition may be rated under the diagnostic code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently receiving a non-compensable rating for his shin splints of the right lower extremity under DC 5262. Under Diagnostic Code 5262, a 10 percent evaluation is assigned when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent evaluation is assigned when there is moderate knee or ankle disability; a 30 percent evaluation is assigned when there is marked knee or ankle disability. 1. Entitlement to an initial disability rating of at least 10 percent, for shin splints of the right lower extremity, is granted. The Veteran's claim for service connection for shin splints of his RLE was granted in a May 2013 rating decision at an initial non-compensable rating, effective August 16, 2012, the date of his claim. The Veteran subsequently appealed, and this claim ensued. The Veteran asserts that he should be awarded at least 10 percent rating for functional loss due to pain since he was granted service connection because his VA examinations reflect pain on use that adversely affected his ability to walk, stand and run. Furthermore, that since his last VA examination in 2015, the severity and extent of his pain has gotten progressively worse and that he now experiences pain on his right ankle, which further adversely effects his everyday activities. In addition, that he experiences flare-ups more frequently, and that he is undergoing treatment to ease his symptoms, which includes physical therapy and pain medication (ibuprofen and naproxen). See, July 2021 Hearing Testimony. During his initial VA examination in April 2013, the Veteran reported right tibial recurrent pain, particularly with physical activities, which includes his regular running regimen, and that this resulted in him discontinuing running. This examiner noted focal tenderness to the right lower tibia, especially with acute recurrence, which he reported is in the same area the Veteran identified as tender. During a subsequent VA examination in October 2015, the Veteran also reported the same pain on use symptoms, including flareups while running. This examiner also reported objective evidence of localized tenderness in the right anterior shin and along medial tibia, also some tenderness laterally along the tendons, and acknowledged that the Veteran experiences pain when running or extended periods on the feet. The examiner specifically commented that "[a]s long as the veteran does not run or have extended periods of walking or standing, he has minimal shin pain." However, the Veteran has asserted that his disability is affecting his everyday life. Specifically, that running is part of his exercise regimen to manage his weight/reduce obesity and that the nature of his work as an IT personnel requires him to walk frequently in a warehouse, mostly on hardwood floors, which exasperates his pain. The Board finds that a rating of at least 10 percent is warranted for the Veteran's shin splints of his RLE throughout the appeal period because the Veteran's disability has been primarily manifested by pain on motion which is not accounted for in his current noncompensable rating. Based on these facts, the record is sufficiently developed to grant an increased initial rating of at least 10 percent. Where a veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Additionally, the United States Court of Appeals for Veterans Claims (Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Id. In this case, the evidence shows the Veteran reported that his right lower extremity splint shin disability has been manifested by painful motion throughout the appeal period. Thus, in light of the holding of Southall-Norman, the Board finds that a rating of at least 10 percent is warranted for this disability during the appeal period. However, the Board also finds that further development is necessary to evaluate the Veteran's report of increased symptoms of pain and limited motion on his ankle, and more frequent flareups, which further inhibits his ability to use his joints. Accordingly, the Board finds that a bifurcation of this issue is appropriate in this case, and as such, a disability rating evaluation in excess of 10 percent is addressed in the remand portion of this decision. Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc). REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disorder is remanded. 2. Entitlement to service connection for left shoulder disorder is remanded. With regard to his right shoulder, the Veteran testified that he injured his shoulder during his active duty service; that he experiences both pain and limitation of movement when he raises his hand above his head, symptoms that started in service and have continued to the present. The Board notes that the Veteran's service treatment records (STRs) reflect a February 1, 1993, in-service complaint and treatment for right shoulder pain (for 3 days), and numbness on the right side of his back that was getting progressively worse, documented as "[s]light pain, pain on palpitation of right side trapezoid, right deltoid, and lower right back," with diagnoses of costochondritis and muscle strain of the right side trapezoid, right deltoid. However, during the Veteran's initial April 2013 VA examination for his claimed right shoulder disorder, the examiner found a negative nexus, citing to a lack of chronicity and insufficient clinical evidence to support the relation or etiology of his current shoulder disorder to his in-service strain/costochondritis, also citing to the significant lapse of time of over 20 years post service. With regard to his left shoulder, the Veteran also testified that he first started experiencing painful symptoms while he was at boot camp during his active service but that he pushed through the pain and did not make any specific complaints. Further, that his pain was enhanced by specific activities such as holding a M16, particularly when holding it out in front of him, and while doing pushups; however, that although his symptoms were recurrent, they subsided when he was not doing physical activities. The Veteran also asserts that he believes that his left shoulder disability is related to his right shoulder disability because his left shoulder has been overcompensating all throughout the years for his right shoulder that was initially more painful. Further, that post service, he has been privately diagnosed with mild bilateral shoulder impingement and his symptoms are ongoing. The Board finds the April 2013 VA examiner's negative nexus opinion for the Veteran's right shoulder disability inadequate because it is not supported by a thorough medical rationale. With regards to his left shoulder disability, there is no medical nexus opinion of record. Given these facts, the Board finds that the Veteran should be afforded an adequate VA examination for his claimed bilateral shoulder disability, including an opinion as to the etiology of any currently diagnosed shoulder disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for shin splints of the left leg is remanded. The Veteran is seeking service connection for this disability on both a direct and secondary service connection. He testified that he bears more weight on his left side to compensate for his service-connected right lower extremity shin splints, which he believes is the reason for shin splints on his left leg that sometimes causes him to hobble. The Veteran also testified during his July 2021 virtual Board hearing that although only his right-side shin splint was documented in service, he experienced pain on both sides, but that the pain on his right was more severe. Since there is no medical etiology opinion on record addressing the merits of the Veteran's contentions with regards to his left leg shin splints, the Board finds that this issue should be remanded for a VA examination. 4. Entitlement to a disability rating evaluation in excess of 10 percent for shin splints of the right lower extremity is remanded. As previously noted, the Veteran testified during his July 2021 Board hearing that the level of the severity of this disability has gotten progressively worse since his last VA examination in 2015, and that he now experiences pain on both his knee and ankle, which further adversely effects his everyday activities, such as walking. In addition, that he experiences flare-ups more frequently, and that he is undergoing treatment to ease his symptoms, which includes physical therapy and pain medication (ibuprofen and naproxen). See, July 2021 Hearing Testimony. As such, the Board finds that a remand is necessary to determine the current severity of this disability before this aspect of the Veteran's increased rating claim can be adjudicated on its merits. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed left shoulder, right shoulder, and shin splints of the left leg respectively. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The Veteran's claims file, including a copy of this remand, and his private orthopedic records, received on July 12, 2021, should be made available to and reviewed by the examiner prior the examination. The examiner should then: (a) Confirm or rule out all disabilities relating to the Veteran's left shoulder. (b) Confirm or rule out all disabilities relating to the Veteran's right shoulder. (c) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed right shoulder disability originated during, or is etiologically related to, active duty service. (d) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed left shoulder disability originated during, or is etiologically related to, active duty service. (e) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed left shoulder disability was caused or aggravated by the Veteran's right shoulder disorder. (f) Confirm or rule out all disabilities relating to the Veteran's left leg, including shin splints. (g) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any diagnosed shin splints of the left leg originated during, or are etiologically related to, active duty service. (h) As to the Veteran's claim for shin splints of the left leg, the examiner must also address whether or not the Veteran has an antalgic gait due to his service-connected shin splints of the right lower extremity, and if so, provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's shin splints of the left leg is caused or aggravated by the antalgic gait that has resulted from the Veteran's shin splints of the right lower extremity. (i) The examiner must also provide an opinion as to whether the Veteran's obesity is at least as likely as not (i.e. a probability of 50 percent or greater) due to his service-connected shin splints of the right lower extremity, to include medications prescribed for treatment of such. (j) *In addressing the above, the examiner must consider whether the Veteran's service-connected shin splints of the right lower extremity prevent him from maintaining an exercise regimen that would prevent obesity. (k) If the response to part (h) is affirmative, state whether the Veteran's shin splints of the left leg is at least as likely as not (i.e. a probability of 50 percent or greater) caused or aggravated by the obesity that is secondary to service-connected shin splints of the right lower extremity. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports, including his July 2021 testimony, must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 2. With regard to the Veteran's increased rating claim for his service-connected shin splints of the right lower extremity, the examiner should determine the current severity of this disability. The examiner should perform all necessary diagnostic tests and report all clinical manifestations in detail. a) The examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing or state why such testing is not warranted or not feasible in light of Correia v. McDonald, 28 Vet. App. 158 (2016). The specific degree at which pain occurs for ALL range of motion testing must be noted for the record. b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. Any such additional functional impairment on repeated use or during flare-ups should be reflected in terms of the degree of additional range of motion loss. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. To the extent possible, the examiner should identify any symptoms and functional impairments due to the shin splints of the left leg and shin splints of the right leg alone and discuss the effect of the Veteran's shin splints on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 3. After all of the above development has been completed, the Agency of Jurisdiction (AOJ) should readjudicate the issues on appeal. If the benefit sought is not granted, the AOJ should send the Veteran and his attorney a Supplemental Statement of the Case (SSOC), provide an opportunity to respond, and then, if necessary, return the case to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.