Citation Nr: 21071877 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-18 244 DATE: December 1, 2021 ORDER Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a low back disability with radiculopathy is granted. Prior to February 7, 2021, entitlement to an initial compensable rating for left shin splints is denied. From February 7, 2021, entitlement to an initial rating of 10 percent for left shin splints is granted. FINDINGS OF FACT 1. The Veteran's right hip disability is etiologically related to service. 2. The Veteran's right ankle disability is etiologically related to service. 3. The Veteran's low back disability with radiculopathy is etiologically related to service. 4. Prior to February 7, 2021, the Veteran's left shin splints were not manifested by malunion of tibia and fibula. 5. From February 7, 2021, the Veteran's left shin splints are unresponsive to shoe orthotics or other conservative treatment. Shin splints unresponsive to surgery are not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a low back disability with radiculopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Prior to February 7, 2021, the criteria for an initial compensable rating for left shin splints were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (Effective prior to February 7, 2021). 5. From February 7, 2021, the criteria for an initial 10 percent rating for left shin splints are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (Effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1999 to March 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In June 2018 and December 2020, the Board remanded these matters for further evidentiary development. The directives have been substantially complied with and the matters again are before the Board. D'Aries v. Peake, 22V et. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board, in June 2018 and December 2020, also remanded the issues of entitlement to service connection for a vestibular disorder, to include vertigo, service connection for a right arm disability, and service connection for a left knee disability. In a March 2021 rating decision, the AOJ granted service connection for right elbow tendinitis (claimed as a right arm disability), and service connection for patellofemoral pain syndrome of the left knee. The AOJ, in a subsequent August 2021 rating decision, awarded service connection for peripheral vestibular disorder and vertigo. These actions constituted full grants of the benefits sought, and are no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that she is entitled to service connection for a right hip disability, service connection for a right ankle disability, and service connection for a low back disability with radiculopathy. She generally asserts that she sustained several falls during basic training, whereby injuring her back, right ankle, and right hip. The Veteran also attributes her claimed disabilities to frequent jogging during active service. The Veteran further contends that she has continued to experience right hip, right ankle, and radiating back pain since her separation from active service. Service treatment records reflect that the Veteran endorsed a gradual onset of right hip pain in September 1999 while she participated in basic training. The Veteran was assessed with iliac muscle strain. She subsequently noted that same month that she had experienced right hip pain for the past two months, and continued to seek treatment for associated symptoms in October and November 1999. The Veteran was provided with crutches in October 1999, and in November 1999, the Veteran noted that her hip pain worsened with running and was assessed with right hip flexor strain. Subsequent service records dated April 2000 indicate that the Veteran reported sharp pain from the middle of her lower back to the left side. It was noted that it was potentially due to an "awkward sit up or push up." Thereafter, the Veteran endorsed ankle pain that started in basic training but recently worsened. She reported difficulty running, as it felt as if her legs gave out. The Veteran further noted that the pain radiated to her right hip. She was assessed with ankle laxity. In-service physical therapy notes dated July 2000 reflect that the Veteran endorsed right hip pain for the past nine months, increased right ankle instability, and weakness and right hip pain with running. In September 2000, the Veteran endorsed radiating lower back pain to her right lower extremity, and that she could not bend or stand for extended periods. Thereafter, in October 2000, the Veteran indicated that she experienced lower back pain following an eight-mile road march. Tenderness to palpation and pain with bending was observed on physical examination. Service treatment records dated January 2001 reflect that the Veteran continued to endorse a difficult time running and standing for extended periods. In November 2001, the Veteran reported lower back and hip pain. The Veteran, in January 2002, stated that her right hip pain had its onset in basic training due to a fall. In June 2002, the Veteran reported back pain and was assessed with a muscle spasm. Thereafter, in March and April 2003, the Board notes that the Veteran was assessed with numbness, paresthesias, and cramping of the bilateral lower extremities due to complaints of numbness from the knees to her toes. In September and October 2003, the Veteran reiterated her prior reports of right hip pain, which was aggravated by prolonged standing, walking, and running, as well as right ankle pain. She noted that she experienced pain symptoms since basic training four years prior. Throughout the Veteran's active service, the Veteran was placed on temporary and permanent physical profiles and received sick slips on several occasions for bilateral lower extremity pain symptoms. The Veteran was directed not to march, jump, squat, run, stand for extended periods, wear a rucksack, or perform jumping or impact activities. VA outpatient treatment records document complaints of and treatment for pain symptoms associated with her low back, right hip, and right ankle. Post-service treatment records also document a diagnosis of mild facet arthropathy and degenerative arthritis of the lumbar spine. The April 2011 VA examiner was unable to render an opinion due to a reportedly normal physical examination of the back, and similarly, the January 2021 VA examiner indicated that physical examinations of the right ankle and right hip were unremarkable such that to provide an etiology opinion would be for "educational purposed [sic] only." However, at each of the respective examinations, the Veteran endorsed associated pain symptoms and difficulty with balance. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone can constitute a "disability" under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To the extent that the January 2021 VA examiner rendered a negative nexus opinion for the claimed low back disability with radiculopathy, the VA examiner did not consider the Veteran's competent and credible lay statements of continuous pain since service. Therefore, no probative weight may be assigned to the opinion of the January 2021 VA examiner. In November 2020, the Veteran underwent a private consultative examination. The Veteran reported that the onset of her claimed right hip, right ankle, and lumbar spine disabilities was due to injuries while in basic training. She noted that she received sick slips and was prescribed medication. The examiner noted that chronicity and continuity, as shown in the Veteran's case, are a direct manifestation of the previous injuries. The consultative examiner concluded that the facts, as shown by the evidence, establish that the Veteran's right ankle, right hip, and lumbar spine disabilities resulted in disabilities, and were incurred coincident with her in-service injury. The examiner opined that the Veteran's disabilities more likely than not were incurred while in service. The Board finds that the opinion is entitled to probative weight, as the opinion considered and addressed the Veteran's lay statements, was based on the Veteran's treatment history, and provided a sufficient supporting rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the opinion is of high probative value. Further, with regards to the claimed right hip and right ankle disabilities, there are no opinions to the contrary. Therefore, the record reflects competent and credible evidence of injuries in service, a continuity of right hip, right ankle, and radiating low back pain since that time, and current disabilities of the right hip, right ankle, and low back. Service connection must be granted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, consideration must also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018); 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. VAOPGCPREC 9-98. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran contends that she is entitled to an initial compensable rating for left shin splints. The Veteran's left shin splints are rated under Diagnostic Code 5299-5262, which indicates that the left shin splints are rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are assigned a four digit diagnostic code with the first two numbers selected from the part of the rating schedule that most closely identifies the part or system of the body involved and then the last two digits of "99"); see also 38 C.F.R. § 4.27 (stating "if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen"). Effective February 7, 2021, the schedule of ratings for impairment of the tibia and fibula were amended. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, (Diagnostic Code 5262). Prior to February 7, 2021, Diagnostic Code 5262 provided that a 10 percent rating is assigned for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent disabling is assigned for moderate knee or ankle disability. A 30 percent rating is assigned for marked knee or ankle disability. A maximum 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, the amended criteria direct that nonunion of the tibia and fibula, with loose motion and requiring a brace, warrants a 40 percent rating. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The amended Diagnostic Code 5262 also provides ratings for medial tibial stress syndrome (MTSS) as of February 7, 2021, also known as "shin splints." MTSS with treatment less than 12 consecutive months, on or both lower extremities, warrants a noncompensable (zero percent) rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, warrants a 10 percent rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, warrants a 20 percent rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, warrants a schedular maximum rating of 30 percent. Id. The evidence of record reflects that the Veteran was afforded a VA examination in April 2011. The Veteran endorsed pain in her legs, which was exacerbated with climbing stairs and prolonged standing and walking. She noted that her pain symptoms were relieved with pain medication, rest, and postural changes. Upon physical examination, the VA examiner observed pain with tenderness, and referenced the Veteran's complaint of severe, weekly flare-ups that lasted for hours. The examination report noted that there was no deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, or effusions of the left shin. Pursuant to the Board's June 2018 remand, the Veteran was afforded a subsequent VA examination in December 2019. The examination report referenced the Veteran's diagnosis of left shin splints (MTSS). The VA examiner reported that the disability did not affect the range of motion of the knee or ankle, but acknowledged the Veteran's complaints of pain at the distal lower leg with standing and walking for long periods of time. Thereafter, the Veteran underwent another VA examination in January 2020. With regards to range of motion testing, the VA examiner indicated that a shin is not a joint and did not perform such testing. The VA examiner further noted that the disability did not affect ranges of motion of the knee or ankle. Nevertheless, the VA examiner observed tenderness to palpation of the left shin. Following the December 2020 remand by the Board, the Veteran was afforded a VA examination in January 2021. The VA examiner reported that the Veteran's left shin splints (MTSS) was unresponsive to shoe orthotics or other conservative treatment. Prior to February 7, 2021, no compensable evaluation is warranted. The evidence of record was negative for any finding that the Veteran's disability manifested malunion of the tibia or fibula. To the extent that the Veteran has consistently endorsed pain symptoms associated with her left shin splints during the appellate period, a knee or ankle disability was required for a compensable rating under the prior schedular criteria. As referenced above, the Veteran is now in receipt of a 10 percent rating for patellofemoral pain syndrome of the left knee, and as such is compensated for associated pain symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). Compensating such under both Codes would constitute prohibited pyramiding. 38 C.F.R. § 4.14. Since February 7, 2021, a 10 percent rating is warranted under the amended schedular criteria. The Veteran has experienced continued pain of the left shin, which has been unresponsive conservative treatment with orthotics and similar steps. No surgery has been performed. Therefore, the Board finds that an initial compensable rating for left shin splints is not warranted for the period prior to February 7, 2021. The Board further finds that an initial 10 percent rating is warranted thereafter. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.