Citation Nr: 21073037 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-35 117 DATE: December 7, 2021 ORDER A rating higher than 20 percent for left leg shin splints is denied. A rating higher than 20 percent for right leg shin splints is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's left leg shin splint is manifest by tibia and fibula, impairment, malunion with moderate left ankle disability. 2. For the entire period on appeal, the Veteran's right leg shin splint is manifest by tibia and fibula, impairment, malunion with moderate right ankle disability. CONCLUSIONS OF LAW 1. The criteria have not been met for a rating higher than 20 percent rating for left leg shin splints. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 2. The criteria have not been met for a rating higher than 20 percent rating for right leg shin splints. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1993 to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In a September 2021 rating decision, service connection for bilateral knee disabilities, bilateral wrist disability, and a total disability rating based on individual unemployability (TDIU) were granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial ratings or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). DUTIES TO NOTIFY AND ASSIST Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal was remanded for a current VA examination to address the changes to the rating criteria. The Veteran received a September 2021 VA examination that addressed the new rating criteria. Accordingly, there was substantial compliance with the May 2021 remand directives. INCREASED RATING Shin Splints Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. The Veteran's bilateral shin splints are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For malunion of the tibia and fibula, evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Factual Background The Veteran filed a claim for an increased rating for the bilateral shin splints in November 2012. Thus, the period on appeal begins on November 8, 2011 (that is, calculating from the date VA received the claim, plus the one-year "look-back period"). See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In a December 2012 statement, the Veteran reported having extensive pain in both legs that was not getting any better and required daily anti-inflammatory medication and ice applied twice a week. The Veteran reported being prescribed shoe pads for prolonged standing and walking and reported being unable to do any exercise or physical activities due to leg pain. The Veteran received a January 2013 VA examination. The Veteran had daily flare-ups of bilateral shin pain causing functional limitations with sitting, standing, and weight-bearing. The examiner described severe-to-moderate pain in both shins causing the Veteran to discontinue his occupation as a barber, because he could not bear weight long enough to meet demands of his skilled trade. In his September 2013 notice of disagreement (NOD), the Veteran reported that his shin splints on both legs were getting worse and that the pain was "more frequent than ever." In his April 2015 substantive appeal, the Veteran again reported worsening shin pain and knee pain; and that he used ice and anti-inflammatory medications daily. The Veteran received a May 2015 VA examination. The examination showed that the Veteran experienced pain and discomfort along both shins, from the top of the ankles to the knees; and his daily pain had an intensity of 8/10. The VA examiner documented flare-ups as having an intensity of 10/10, and as occurring three times weekly and lasting from 10-to-15 minutes and awakening the Veteran from sleep. The examiner noted that the Veteran's shin splints did not affect the ranges of motion of either ankle or knee. The same examiner performed an ankle examination. The Veteran declined to dorsiflex each ankle beyond 10 degrees and indicated that it would hurt his shin splints more. The examiner noted that the Veteran's shin splints did affect ranges of motion of both ankles but there was no pain in the ankle joints. The Veteran received February 2020 and August 2020 VA examinations. In both examinations the examiner noted that the Veteran's shin splints did not affect the ranges of motion of either ankle or knees. The August 2020 VA examination showed the Veteran wore bilateral compression sleeves for his shins. November 2020 VA treatment records showed physical therapy for shin pain and the Veteran continued to report shin pain during April 2021 VA treatment. The Veteran received a September 2021 VA examination. The examiner determined bilateral shin splints required treatment for 12 consecutive months or more and the Veteran's shin splints were unresponsive to shoe orthotics or other conservative treatment. Additionally, the examiner determined the Veteran's shin splints did not affect the ranges of motion of either ankle or knees. Analysis The Board finds that the preponderance of the evidence is against a rating higher than 20 percent for left and right leg shin splints. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain in the shins. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups caused severe pain would not result in symptoms more nearly approximating malunion of the tibia or fibula with marked knee or ankle disability. Notably, the Veteran is separately rated for his right and left knee disabilities for arthritis associated with shin splints and for instability in both knees. The additional functional loss for knee impairment is separately compensated under his knee ratings. The evidence does not show a higher 30 percent rating is warranted for the shins alone. The rating criterion requires impairment to the knee or ankle disability. The only mention of the Veteran's ankle was during the May 2015 VA examination. The other examinations indicate no loss of range of motion in the ankle due to the shin splints. This lack of additional ankle evidence or complaints of ankle disability show the ankle impairment is moderate or "limited in scope or effect." There is no medical or lay evidence to indicate the Veteran's ankle impairment is marked or has a "distinctive or emphasized character." Accordingly, a higher rating is not warranted based on "marked" ankle impairment. Additionally, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent under the new criteria. The September 2021 VA examination showed required treatment for 12 consecutive months or more and the Veteran's shin splints were unresponsive to shoe orthotics or other conservative treatment. There is no evidence the Veteran has had surgery on either shin. Thus, there is no evidence, and the Veteran does not allege, an unresponsive shin split surgery. The criteria requires unresponsive surgery for the higher 30 percent rating. Accordingly, a higher rating is not warranted. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 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 paying compensation twice for the same symptoms or functional impairment). As noted above, the Veteran is separately rated for bilateral knee arthritis and bilateral knee instability. Any additional rating would be duplicative and overlapping. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating higher than 20 percent for bilateral shin splints. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.