Citation Nr: 21072950 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-23 897 DATE: December 7, 2021 ORDER A rating in excess of 10 percent for stress fracture of the right tibia is denied. A rating in excess of 10 percent for stress fracture of the left tibia is denied. A separate rating for vision impairment related to a scar of the right eye is denied. FINDINGS OF FACT 1. The Veteran's bilateral tibia disorders, including shin splints, have caused painful motion approximating no worse than slight impairment; the disabilities have not been unresponsive to surgery and either shoe orthotics or other conservative treatment. 2. The Veteran's right eye vision impairment was not caused or aggravated by his service-connected right eye scar. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for stress fracture of the right tibia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5262. 2. The criteria for a rating in excess of 10 percent for stress fracture of the left tibia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5262. 3. The criteria for a separate rating for vision impairment related to a scar of the right eye have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.79, DC 6090. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 2000. The case is on appeal from a January 2012 rating decision. In July 2017, the Veteran testified at a Board hearing. In a February 2020 decision, the Board denied a separate rating for vision impairment related to a scar of the right eye. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claim (Court). Pursuant to an October 2020 Joint Motion for Partial Remand (JMR), the Court vacated the Board's denial by a November 2020 Order, and remanded the issue to the Board. Thereafter, in April 2021, the Board remanded the three present claims for further development. The Board also denied service connection for right and left ankle disorders. New evidence has been obtained and associated with the claims file since the most recent September 2021 supplemental statement of the case (SSOC), including VA examination reports and VA treatment records. In an October 2021 brief, the Veteran's representative submitted a waiver of RO review. See 38 C.F.R. § 20.1305(c). Thus, the evidence will be considered in the first instance. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. A rating in excess of 10 percent for stress fracture of the right tibia. 2. A rating in excess of 10 percent for stress fracture of the left tibia. Specific Legal Criteria The Board notes VA revised the rating criteria for evaluating musculoskeletal disorders, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Under 38 C.F.R. § 4.71a, DC 5262, and prior to the regulatory change, the rating schedule provided for a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability, a 20 percent rating for moderate knee or ankle disability, a 30 percent rating for malunion with marked knee or ankle disability, and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Under the new rating criteria, effective February 7, 2021, DC 5262 pertains to medial tibial stress syndrome (MTSS), or shin splints. The revised DC 5262 provides that a 10 percent disability rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, a 20 percent disability rating 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 rating 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. Facts Following the Veteran's April 2010 claim for an increased rating, the Veteran was afforded a June 2010 VA examination in which he reported that his right and left mid-leg hurts. The Veteran denied flare-ups but noted running and cold weather make the pain worse in his legs. He stated when working, he experiences pain and swelling. X-ray results showed the tibias were normal bilaterally. The Veteran submitted an August 2012 statement in which he indicated he suffers from constant pain in the tibia region of the middle of his legs, including with movement. He reported he always has pain and when working long shifts, he experiences increased pain and swelling. In the June 2014 substantive appeal, the Veteran stated that his tibia pain had worsened. The Veteran was afforded an August 2014 VA examination in which no flare-ups were reported. The examiner indicated the Veteran has bilateral shin splints, including sharp shooting anterior pain. The examiner stated with colder weather the Veteran's bilateral tibia disorders impact his ability to work. The Veteran was afforded a July 2017 Board hearing in which he testified that his shin splints bother him all the time and walking, including during work, causes increased pain. In the February 2020 Board decision, it increased the bilateral tibia ratings to 10 percent and remanded the claims for ratings in excess of 10 percent. The Veteran was afforded a September 2020 VA examination in which he reported flare-ups, including that his tibia "just freezes up and swells". He indicated he experiences sharp pain, more intense than typical symptoms. The Veteran indicated his flare-ups occur 1 to 2 times per week, cause pain at a level of 8 to 9 out of 10 and have a duration of 30 minutes to one hour. He further reported he cannot walk as often and as quickly as he wants to, he requires frequent breaks to rest while doing yard work and that his tibial disorders stiffen at work requiring him to take breaks. Range of motion testing showed dorsiflexion of the right ankle limited to 5 degrees and plantar flexion to 45 degrees, as well as dorsiflexion of the left ankle limited to 5 degrees and plantar flexion limited to 40 degrees. The examiner found there is no evidence of pain with weight bearing, nonweight-bearing and no objective evidence of pain on passive range of motion testing in both tibia disorders. With regard to the reported flares, the examiner stated the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. She noted pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare-ups. She indicated prolonged ambulation aggravates the Veteran's pain. No ankylosis was found bilaterally. As noted above, the claims were remanded by the Board in April 2021 for further development, including a VA examination to determine the severity of the bilateral tibia disorders. The examiner was directed to estimate the functional loss that would occur during flares. The Veteran was afforded a September 2021 VA examination in which he did not report flare-ups of the disorders, along with no functional impairment. The examiner indicated the Veteran has no pain while resting; however, he reports pain triggered by prolonged, excessive, repetitive and persistent use. He states relief for the disorders comes with rest. The examiner found repetitive use causes pain which significantly limits his functional ability over time. She indicated there is no ankylosis or instability, but the tibia disorders cause pain with excessive activity. She opined the tibia disorders have no impact on the Veteran's ability to work and there is no evidence of pain in weight-bearing, nonweight-bearing or in passive motion. Analysis After a careful review of the evidence, the Board determines ratings in excess of 10 percent are not warranted for the Veteran's service-connected tibia disorders for the entire appeal period. With regard to the rating criteria prior to February 7, 2021, the bilateral tibia disorders did not cause symptoms and restrictions suggestive of moderate impairment. As to the revised DC 5262, the evidence does not show that the disabilities are unresponsive to surgery and either shoe orthotics or other conservative treatment, which would support higher ratings. The evidence of record during the appeal period included several VA examinations, including a June 2010 VA examination in which the Veteran reported pain and that running and cold weather make the pain worse. However, x-rays showed the tibias were normal bilaterally. The August 2014 VA examiner indicated no flare-ups were reported but that the Veteran has bilateral sharp shooting anterior pain. Following the February 2020 Board remand, the September 2020 VA examiner found the tibia disorders freeze up, swell, and cause sharp pain. With flare-ups, the Veteran indicated a pain level of 8 to 9 out of 10 with a duration of 30 minutes to one hour. However, the examiner found no evidence of pain with weight bearing, nonweight-bearing and no objective evidence of pain on passive range of motion testing. The September 2021 examiner found no reports of flare-ups and that the Veteran's symptoms were found similar to the prior examination, including no evidence of pain in weight-bearing, nonweight-bearing or in passive range of motion. After considering the totality of the record, the Board finds the preponderance of the evidence is against disability ratings in excess of 10 percent for the Veteran's bilateral tibia disorders, at any time during the pendency of this appeal. The evidence of record does not demonstrate more than slight impairment, as would warrant the next higher rating. Further symptoms have not been found which suggest the disorders are unresponsive to surgery, and either shoe orthotics or other conservative treatments are not effective. In sum, the Board finds the preponderance of the evidence is against the claims and ratings in excess of 10 percent for the Veteran's bilateral tibia disorders are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. A separate rating for vision impairment related to a scar of the right eye. During the April 2018 decision, the Board determined the issue of a separate rating for vision impairment had been raised. The Veteran's service-connected right eye scar is rated under DC 7800 and DC 7805 directs VA to rate separately any disabling effects not considered in a rating provided under DCs 7800-04. The Board notes at the July 2017 Board hearing, the Veteran testified that he sometimes has blurred vision in his right eye because of his scar. In the April 2018 remand, the Board determined a VA examination and medical opinion were necessary to determine if the Veteran has blurred vision which is associated with his service-connected right eye scar. The Veteran was afforded an April 2019 VA examination in which the examiner diagnosed him with intraocular lens of the right eye which is not related to his right eye scar or the in-service injury which caused the scar. The examiner opined the injury did not cause any damage or affect the eyes in any way, manner or fashion. She stated even the right eyelid scar is almost invisible, nontender, nondisabling, nondisfiguring and hardly visible. The examiner indicated there is no diagnosis because there is no pathology to render a diagnosis. She noted an eye examination in January 2004 showed the Veteran's unaided right eye vision was 20/30 and that he had become slightly nearsighted, which usually happens with aging and can be related to the development of cataract. The examiner stated his impaired right eye distance vision and clear near vision is the result of cataract surgery and is the intended result of an intraocular lens, which allows him to see without the use of glasses. She indicated the Veteran can read without glasses for his right eye and can wear glasses to see adequately at distance. Thus, she concluded the claimed right eye condition is less likely than not due to or the result of the right eye injury and resulting scar. The claim was denied by the Board in its February 2020 decision. As noted, the Veteran appealed to the Court and per the October 2020 JMR, the decision was vacated and remanded to the Board. In the October 2020 JMR, the parties found that the April 2019 VA examination report was not fully adequate, as the examiner did not address whether the Veteran's blurred right eye vision was aggravated by his service-connected right eye scar. Following the April 2021 Board remand, the Veteran was afforded a May 2021 VA opinion. The examiner noted the Veteran's history and opined his right eye blurred vision was not aggravated by his service-connected right eye scar. She stated the record supports that the Veteran's blurred vision was not worsened by his right eye scar. She further indicated the prior examination reports she reviewed reveal that the Veteran's right eye scar caused no damage to the right eye itself and therefore, the scar did not aggravate the Veteran's blurred vision. After a careful review, the Board finds a separate rating for vision impairment, to include as related to the service-connected right eye scar, is not warranted. The most probative evidence of record supports that the right eye vision impairment the Veteran experiences was not caused or aggravated by his service-connected right eye scar. The April 2019 VA examination report found there is no causal relationship between the Veteran's right eye vision impairment and his service-connected right eye scar. She indicated the in-service injury did not cause any damage or affect the right eye in any way, manner or fashion and the Veteran's right eyelid scar is almost invisible, as well as nontender, nondisabling and nondisfiguring. While this opinion is deemed adequate as to whether the Veteran's right eye scar caused his right eye vision trouble, an additional opinion was required to address aggravation, per the October 2020 JMR. Thereafter, the May 2021 VA examiner opined the Veteran's right eye blurred vision was not aggravated or worsened by his service-connected right eye scar, as the scar has caused no damage to the right eye itself. The Board determines the most probative medical evidence of record is the April 2019 and May 2021 VA opinions and such persuasively support that the Veteran's right eye blurred vision is not related, to include caused or aggravated, to his service-connected right eye scar. The Board finds based on the medical evidence of record the preponderance of the evidence is against the claim. As such, a separate rating is not warranted for right eye vision impairment. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.