Citation Nr: 21070258 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-06 421A DATE: November 23, 2021 ORDER Entitlement to service connection for a right knee condition, to include as secondary to service-connected right shin splints, is denied. Entitlement to service connection for a left knee condition, to include as secondary to service-connected right shin splints, is denied. Entitlement to service connection for residuals of right tibia fracture, to include as secondary to service-connected right shin splints, is denied. Entitlement to service connection for residuals of left tibia fracture, to include as secondary to service-connected right shin splints, is denied. Entitlement to an initial evaluation of 10 percent, but no higher, for service-connected right shin splints is granted. Entitlement to an initial evaluation of 10 percent, but no higher, for service-connected left shin splints is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's bilateral knee condition is secondary to service-connected bilateral shin splints or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had any additional bilateral tibial disability, other than having symptoms related to her service-connected bilateral shin splints or non-service-connected knee condition, at any time during or approximate to the pendency of the claim. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's bilateral shin splints have been resulting in bilateral shin and knee pain, weakness, decreased range of motion of the knees, and swelling with overuse. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition, to include as secondary to service-connected right shin splints, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left knee condition, to include as secondary to service-connected right shin splints, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for residuals of a right tibia fracture, to include as secondary to service-connected right shin splints, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for residuals of a left tibia fracture, to include as secondary to service-connected left shin splints, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial evaluation of 10 percent, but no higher, for service-connected right shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5262. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial evaluation of 10 percent, but no higher, for service-connected left shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2005 to September 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran previously requested a Board hearing but failed to appear at the scheduled hearing in September 2017 without providing a good cause. Since then, the Veteran has not requested a new hearing. Thus, the Board deems that the Veteran's hearing request has been withdrawn. In June 2018, the Board denied the Veteran's service connection claims for bilateral knee condition and residuals of bilateral tibia fractures, and an increased rating claim for service-connected bilateral shin splints. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Partial Remand to vacate the Board's June 2018 decision and remanded the matters for readjudication. In particular, the Court found that the Board failed to discuss the applicability of Saunders v. Wilkie in denying the Veteran's service connection claims due to a lack of diagnosis and erred by failing to provide an adequate statement of reasons or bases. Since then, the Board remanded the matters in May 2020 and December 2020 for additional development. Now the matters are returned to the Board. Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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(b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Knee conditions The Veteran contends that her current bilateral knee condition began with service. See March 2012 Veteran's Application for Compensation and/or Pension. The Board notes that the VA examiners found no knee diagnosis other than shin splints. See e.g., January 2013 and August 2020 Knee and Lower Legs Conditions Disability Benefits Questionnaire (DBQ). However, the Veteran submitted a knee and lower leg conditions DBQ completed by her chiropractor in which the Veteran's diagnosis of bilateral knee tendonitis/tendinosis and bilateral patellofemoral pain syndrome (PFPS) were noted. In light of above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran has a current bilateral knee disability. Thus, the first Shedden element for service connection is met. As to the in-service incurrence of the Veteran's current knee conditions, the Board notes that the Veteran complained of mild left knee pain once during service. See July 2006 Service Treatment Record (STR). Also, the Veteran indicated "knee trouble" during her separation examination. See September 2006 Report of Medical History. Thus, the Board resolves any reasonable doubt in the Veteran's favor and finds that the second Shedden element for service connection is also met. However, an August 2021 VA examiner opined that it is less likely than not that the Veteran's reported diagnoses of right and left knee tendonitis and bilateral PFPS had its onset in service or are otherwise related to her active-duty service. The examiner provided that there is insufficient evidence for the emergence of any knee pain over the 9-month period of active-duty service after the Veteran's shin splints had developed. The examiner also pointed out that there was more than a 5-year gap between the first documentation of the Veteran's knee pain since the separation. The examiner disagreed with the diagnoses given by the Veteran's chiropractor and stated that the sole finding of patellar tenderness does not adequately support the diagnoses of knee tendonitis and bilateral PFPS. The examiner also opined that the probative value of the March 2020 examination is significantly mitigated by a lack of clinical expertise of the chiropractor compared to a physician. The examiner noted that the only in-service documentations of knee complaints were a mild left knee pain in June 2006 and the Veteran's indication of knee troubles made during the September 2006 separation examination. The August 2021 examiner pointed out that the knee complaint made during the separation was not elaborated by the examiner who conducted the separation examination, and the only notation by the examiner was on the Veteran's complaint of "pain in lower legs and feet." The examiner provided that there are multiple STRs that addressed the clinical course of the Veteran's shin splints, but none of those contains any notation of complaints related to the knees. The examiner stated that many of the STRs documented normal knee examinations with full painless range of motion without any positive knee findings. The examiner also noted that the final in-service follow-up note for shin splints indicates the Veteran was then "pain free." Moreover, the August 2021 VA examiner opined that it is less likely than not that the Veteran's reported diagnoses of bilateral knee tendonitis and bilateral PFPS were aggravated (made worse) by her service-connected bilateral shin splints. The examiner noted that the in-service imaging test found that the Veteran's tibial fracture did not involve tibial plateau and did not involve the knee joint. The examiner reasoned that knee tendonitis, PFPS, and shin splints are intrinsically different conditions. The examiner provided that the pain from shin splints commonly radiates to the knee and ankle, but unless there is a tibial pathology directly involves the knee joint, i.e., stress reactions and/or fractures, which was not found in the Veteran's case, there is no logical cause-and-effect relationship between the two conditions. The examiner stated that the nonspecific diagnosis of knee tendonitis in this case is presumed to be referring to patellar tendonitis, since it is by far the most commonly implicated knee tendon and there is no evidence for the involvement of any other tendons. The examiner explained that patellar tendonitis is a common overuse injury to the knee and is caused by repetitive flexion and stress on the tendon, whereas shin splints are caused by repetitive axial loading. Further, the examiner provided that PFPS is caused by irritation of patellar structures by repetitive flexion and joint stress, and it is commonly associated with lax patellar tracking, which was not found in the evidence of record. The examiner provided that shin splints might arise in the same setting as patellar tendonitis or PFPS, but the pathology of the conditions is separate and distinct. The examiner concluded that even if the Veteran currently has the patellar tendonitis and PFPS, the clinical course of those conditions would have been unaffected by the concurrent shin splints. The Board finds the August 2021 VA medical opinion to be competent and credible evidence and assigns high probative weight as the examiner reviewed the Veteran's records and related medical literature prior to rendering the opinion and provided sufficient supporting rationale. The Board notes that the Veteran's private chiropractor did not provide any etiology opinion with the March 2020 knee conditions DBQ. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's bilateral knee condition is secondary to service-connected bilateral shin splints or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a right and left knee condition, to include as secondary to service-connected right shin splints, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Residuals of tibia fractures Notably, the VA examiners found that the Veteran does not have any diagnosable right and left tibia condition. See e.g., January 2013 Knee and Lower Legs Conditions DBQ (the X-ray result of January 16, 2013 indicated normal bilateral tibia/fibula); August 2020 Medical Opinion DBQ; September 2020 Radiology Report (finding of normal bilateral tibia and fibula was made); see also March 2015 Primary Care Initial Evaluation Note (the pedal and tibial posterior pulses were strong on both sides without any joint deformities; joints were in good range of motion). The Board acknowledges that the Veteran's private chiropractor noted a diagnosis of stress fracture of bilateral tibia, but it is clearly indicated that the date of the diagnosis was January 2006. See March 2020 Knee and Lower Leg Conditions DBQ. Even when considering Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Board notes that the evidence does not contain any current findings of tibial fracture or a diagnosis associated with residuals of the Veteran's in-service stress tibial fracture that is separate from the symptoms of her service-connected shin splints or non-service-connected bilateral knee condition. Therefore, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had any additional bilateral tibial disability, other than having symptoms related to her service-connected bilateral shin splints or non-service-connected knee condition, at any time during or approximate to the pendency of the claim. The Veteran has not had bilateral tibial disability at any time during or approximate to the pendency of the claim. The benefit-of-the-doubt doctrine does not apply here as the preponderance of the evidence is against the claim. Consequently, the Veteran's entitlement to service connection for residuals of right and left tibia fracture, to include as secondary to service-connected right shin splints, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. Increased ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. The Veteran was assigned a noncompensable initial evaluation for her service-connected bilateral shin splints and seeking a higher initial evaluation. Shin splints are evaluated under Diagnostic Code 5262. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021, which included revisions to Diagnostic Code 5256. 85 Fed. Reg. 230 (Nov. 30, 2020). Prior to February 7, 2021, under Diagnostic Code 5262, a 10 percent evaluation was warranted for malunion of tibia and fibula with slight knee or ankle disability; a 20 percent evaluation was warranted for malunion of tibia and fibula with moderate knee or ankle disability symptoms; and a maximum of 40 percent evaluation was warranted for nonunion of tibia and fibula with loose motion requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. Under the amended Diagnostic Code 5256, a 10 percent evaluation is warranted for shin splints requiring treatment no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent evaluation is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a 30 percent evaluation is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; and a maximum of 40 percent evaluation is warranted for nonunion of tibia and fibula with loose motion requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Here, the Board finds that pre-amended Diagnostic Code 5262 is more favorable to the Veteran. As such, the pre-amended criteria will be used to evaluate the Veteran's service-connected bilateral shin splints. The intent of Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). On January 2013 VA examination, the Veteran complained of bilateral knee and shin pain with increased activities. The right knee flexion ended at 130 degrees with no objective evidence of painful motion and right knee extension ended at 0 or any degrees of hyperextension with no objective evidence of painful motion. The left knee flexion also ended at 130 degrees with extension ending at 0 or any degrees of hyperextension. There was no objective evidence of painful motion for the range of motion of the left knee. The examiner noted that the range of motion is normal for the Veteran's age and body habitus. The examiner indicated that the Veteran's shin splints started in 2005 and noted her current symptom of increased bilateral shin pain with increased activities. In March 2020, the Veteran's private chiropractor noted the Veteran's shin pain with prolonged walking, running, or other activities of daily living. Also, the Veteran's limitation in kneeling and using the knees to lift her small children was reported. It was indicated that the Veteran's right knee flexion ended at 103 degrees, and left knee flexion ended at 101 degrees with both knee extensions ending at 0 degrees. The provider noted that the Veteran's abnormal range of motion contributes to functional loss with weight-bearing stress and repetitive use during daily activities. The provider reported that the Veteran's experiences pain, weakness, decreased range of motion, and swelling with repetitive use due to bilateral shin splints condition. It was noted that the Veteran does not have a history of recurrent subluxation or lateral instability. The provider stated that the Veteran's ability to perform some occupational tasks, including prolonged standing, walking, lifting, and sitting, is impacted by her current condition which causes pain and weakness in knees with repetitive movement. On September 2020 VA examination, the Veteran reported intermittent shin pain and soreness, particularly after wearing high-heeled shoes or running. The Veteran denied seeking any medical care for the shin pain since separation, but provided that she treats the symptoms with resting, applying ice, elevating the legs, and taking Motrin. The Veteran did not report any flare-ups. The right knee flexion ended at 115 degrees and the left knee flexion ended at 125 degrees with both knee extensions ending at 0 degrees. The examiner indicated that there was no pain noted during the range of motion testing and the Veteran's range of motion is normal for her body habitus and age without any clinical significance. As to the current symptoms of the Veteran's shin splints, the examiner provided that the condition was acute, and it was resolved. Based on above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's bilateral shin splints have been resulting in bilateral shin and knee pain, weakness, decreased range of motion of the knees, and swelling with overuse. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an initial evaluation of 10 percent, but no higher, for right and left shin splints is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5262. The next higher evaluation of 20 percent is not warranted as the evidence does not show a moderate level of bilateral knee disability associated with the Veteran's shin splints. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.