Citation Nr: 21073621
Decision Date: 12/09/21	Archive Date: 12/09/21

DOCKET NO. 16-08 212
DATE: December 9, 2021

ORDER

Entitlement to service connection for a left knee disability is denied.

Entitlement to a rating in excess of 10 percent for shin splints of the left leg is denied.

Entitlement to a rating in excess of 10 percent for right knee tendonitis, to include shin splints of the right leg, is denied.

FINDINGS OF FACT

1. A left knee disability was noted on the Veteran's enlistment examination; the evidence does not show an increase in the severity of the underlying disability during service.

2. Prior to February 7, 2021, the Veteran's shin splints of the left leg did not result in flexion limited to 30 degrees, or extension limited to 15 degrees, or malunion of the tibia and fibula with a moderate knee or ankle disability.

3. From February 7, 2021, the Veteran's shin splints of the left leg did not require treatment for no less than 12 consecutive months and were not unresponsive to surgery.

4. Prior to February 7, 2021, the Veteran's right knee tendonitis to include shin splints of the right leg did not result in flexion limited to 30 degrees, or extension limited to 15 degrees, or malunion of the tibia and fibula with a moderate knee or ankle disability.

5. From February 7, 2021, the Veteran's right knee tendonitis to include shin splints of the right leg did not require treatment for no less than 12 consecutive months and were not unresponsive to surgery.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. § 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.306.

2. The criteria for entitlement to a rating in excess of 10 percent for shin splints of the left leg have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260-5262.

3. The criteria for entitlement to a rating in excess of 10 percent for right knee tendonitis, to include shin splints of the right leg, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260-5262.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1994 to August 2002.

This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated July 2014 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed.

The Veteran's appeal has previously been before the Board. In December 2018, January 2021, and July 2021, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Service Connection

1. Entitlement to service connection for a left knee disability

The Veteran raised theories of service connection including direct, secondary, and aggravation of a pre-existing disability. As explained below, because the evidence establishes a pre-existing left knee disability, the theories of direct and secondary service connection are not for application and will not be discussed further. Wagner v. Principi, 370 F.3d 1089, 1096 (2004),

The Veteran contends that she had a left knee disability on entrance to active-duty service which was aggravated during active-duty service.

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.  Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).  In this case, there is a question as to whether the Veteran's left knee disability preexisted her military service.

The appellant established "veteran" status based on her period of active duty service. The Veteran's appeal is based on the period of active duty from September 1994 to August 2002.

The Veteran's April 1994 entrance examination reveals a notation of "hyperextension of both knees." 

In Wagner, the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.  In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service.  If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression.  Id; see also 38 C.F.R. § 3.306(b).

The Board finds that the presumption of soundness does not attach in this case, because the disability of hyperextension of the left knee was noted at entry to service.

As explained below, the Board also finds no increase in severity of the disability during service; therefore, the presumption of aggravation does not attach. 

An intermittent or temporary flare-up during service of a preexisting injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Hence, the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches." Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

Service treatment records (STRs) contain a July 2000 note stating that the left knee was within normal limits (WNL) and unremarkable. STRs show a few reports of left or bilateral knee pain in service. For example, in March 2001, she reported bilateral knee pain at a 3 out of 10 for two months and she was assessed with left knee patellar tendonitis secondary to "hyper-knee motion." A May 2002 STR noted overuse of the bilateral knees resulting in pain and swelling with running or walking for long periods and  prescribed the use of sleeves on her knees. 

An October 2003 VA examination report, completed less than 18 months after separation from service, include an X-ray of the left knee that was negative for any pathology. Physical examination of the left knee showed no instability, joint swelling, redness, or increased warmth. Range of motion was full. The examiner found no knee pathology to diagnose.

Based on the foregoing evidence, the reported pain and swelling during service are not sufficient to show that the pre-existing left knee disability underwent more than intermittent or temporary flare-ups. On the contrary, the fact that left knee symptoms came and went with overuse and no pathology was present less than two years after separation from service indicate that they were intermittent flare ups. The evidence does not show a worsening of the underlying condition. 

This conclusion is supported by the January 2021 VA examiner's explanation that "hyperextension of the knee, also known as genu recurvatum, occurs when the leg excessively straightens at the knee joint, putting stress on the knee structures and the back of the knee joint. During hyperextension, the knee joint bends the wrong way, which often results in swelling, pain and tissue damage."

The January 2021 examiner's opinion regarding aggravation is not probative because it is based in part on the idea that the "Veteran was not evaluated for bilateral knee pain, which includes left knee pain by definition, until April 30, 2018 when she was seen at the Cumberland County VA Clinic. This was almost 16 years after separating from the Army." However, this is an inaccurate factual picture, as the STRs described above do show reports of left knee pain in service. However, the Board finds that the basic explanation of hypertension and its expected symptoms is not based on this inaccurate factual picture and so may be relied upon.

While the Veteran is competent to report her symptoms of a left knee disability during service, she is not competent to provide an opinion that such symptoms were more than temporary or intermittent flare-ups or that the underlying disability was permanently worsened. Providing an opinion regarding whether the left knee disability was aggravated beyond the natural progression of that disorder is complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not shown the medical expertise, experience or training to provide a competent medical opinion on this question.

As the most competent and credible evidence of record does not show an increase in the severity of her left knee disability during service the presumption of aggravation does not attach.  As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required.  Wagner, 370 F.3d at 1096.  Because the Veteran's pre-existing left knee disability was not aggravated by military service entitlement to service connection must be denied.  

Increased Ratings

A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Evidence

In a July 2014 knee and lower leg conditions Disability Benefits Questionnaire (DBQ), the Veteran complained of bilateral shin pain. She stated that she continued to experience pain at the pre-tibial regions of her lower legs when she walked for more than 1/4 mile. She was unable to run. She elevated her legs when they hurt and applied ice until the swelling resolved. She stated that the pain in her left leg is approximately three out of 10 and the right leg did not have constant pain. She reported flare-ups described as pain of 10 out of 10. Right knee flexion ended at 105 degrees with no evidence of painful motion. Right knee extension ended at 0 with no evidence of painful motion. Left knee flexion was to 100 degrees with no evidence of painful motion. Left knee extension ended at 0 with no evidence of painful motion. She was able to perform repetitive-use testing with at least three repetitions. She did not have additional limitation in range of motion after repetitive-use testing. She had no functional loss or impairment. She had no tenderness or pain to palpation for joint line or soft tissues of either knee.

In a May 2015 Notice of Disagreement (NOD), the Veteran wrote, "I cannot walk long distances or even run due to the swelling of my legs due to the shin splints, which have turned to stress fractures. I have a permanent limp now. My knees swell and give out a lot."

In a February 2016 Form 9, the Veteran wrote that she experienced "Severe pain if I walk a short distance swelling and redness."

In an October 2019 knee and lower leg conditions DBQ, the Veteran reported having problems with her shin splints every day. They swelled if she walked too much. She could feel the associated heat. Her knee popping became constant. She stated both knees popped every time she walked. Current symptoms included knee popping, pulsating and throbbing pain, as well as swelling. She noted the skin could turn red. She took Motrin when the symptoms were bad. She occasionally wore bilateral knee braces. Treatment included crutches, rest, ice, elevation, and heat. She reported flare-ups described as when she walked a lot, from building to building. They felt heavy when they swelled up. She reported functional loss or impairment described as being unable to run, speed walk, and exercise, and trouble going up and down stairs. Right knee flexion was 0 to 90 degrees and extension was 90 to 0 degrees. This contributed to functional loss described as bending, lifting, kneeling, squatting, climbing stairs, and running were affected. There was objective evidence of mild tenderness to palpation. There was no evidence of pain with weight bearing or crepitus. Left knee flexion was 0 to 90 degrees and extension 90 to 0 degrees. There was objective evidence of mild tenderness to palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups in both knees described as flexion 5 to 90 degrees and extension 90 to 5 degrees. The additional contributing factor was swelling. She did not have muscle atrophy or ankylosis. There was a history of recurrent effusion describes as bilateral knee swelling treated by elevation, ice, and heat.

In an August 2020 Appellate Brief, the Veteran's representative wrote,

We believe the VA failed to address all aspects of joint pain and limited motion while making their decision. We ask the Board to consider all relevant evidence including the DeLuca and Mitchell criteria...As a result of the DeLuca case, these additional factors must be considered...pain on movement that limits function, including during repetitive use and flare-ups; weakness; excess fatigability; and incoordination. The Mitchell case... emphasized the importance of any functional loss on repetitive use over a period of time or during flare-ups, especially due to pain.

The Board addresses these criteria in its analysis below.

In an August 2020 knee and lower leg conditions DBQ for shin splints, the Veteran reported loss of knee mobility, pain, and swelling on both knees. She reported flare-ups of the knees, which occurred weekly and were severe. They lasted two to three days and were precipitated by prolonged walking and standing. They were alleviated by a hot compress and Motrin. She reported functional loss or impairment described as limited to running, prolonged walking, standing, and walking on stairs. Right knee flexion was 0 to 95 degrees and extension was 95 to 0 degrees. Pain was noted on examination but did not result in or cause functional loss. There was evidence of mild tenderness. There was evidence of pain with weight bearing and evidence of crepitus. Left knee flexion was 0 to 75 degrees and extension was 75 to 0 degrees. Pain was noted on examination but did not result in or cause functional loss. There was evidence of mild tenderness. There was evidence of pain with weight bearing and evidence of crepitus. She was able to perform repetitive-use testing with at least three repetitions in both knees with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups. Flexion was 0 to 90 degrees in the right knee and extension was 90 to 0 degrees. Flexion was 0 to 70 degrees and extension was 70 to 0 degrees in the left knee. She did not have muscle atrophy or ankylosis. She had shin splints described as mild bilateral mid and upper tibia tenderness  direct.

In a correspondence received August 2020, the Veteran wrote,

My lower legs are constantly swollen and painful. I cannot walk long distances and I cannot run at all. I was in physical therapy and had to end early because of the hurricane. Now because of COVID-19 I'm still not able to go back and receive treatment. I have loss of range of motion, they're not stable and they're weak. When I'm walking, my knees constantly pop and buckle. My shins are swollen as soon as I get to my desk. The physician therapist said there is nothing that can be done to correct it except for surgery. The inside of my knees are tender to touch.

In a February 2021 knee and lower leg DBQ, the Veteran noted that she had pain in her shins after running. Current symptoms included tenderness, popping, and occasional swelling. She reported flare-ups occurring weekly and lasting for a couple of hours at a time. She had the inability to do much during flare-ups. Precipitating factors included prolonged walking, running, and an inability to exercise. An alleviating factor was keeping off of it. Flare-ups were severe. She was unable to walk at all during them. She reported functional loss and impairment described as prolonged walking, running, standing, and inability to exercise. Flexion in the right knee was to 90 degrees and extension was to 0 degrees. There was evidence of pain on active and passive motion but it did not result in or cause functional loss. There was no evidence of crepitus or localized tenderness or pain on palpation. The examiner could not test the left knee because she stated her knee was damaged and she did not feel comfortable having it evaluated. She was able to perform repetitive-use testing with at least three repetitions in the right knee with no additional loss of function or range of motion. The Veteran did not feel comfortable performing repetitive use testing in her left knee. Additional contributing factors included interference with standing and less movement than normal in both knees. She did not have muscle atrophy or ankylosis. She had shin splints that were unresponsive to shoe orthotics or other conservative treatment.

In an April 2021 knee and lower leg conditions DBQ for right knee tendonitis, the Veteran reported not walking long distances due to her right knee pain. Her right knee pain was constant and worsening, which averaged a five to six out of 10 on the pain scale. She had achy, throbbing pain and the knees were tender to the touch. Pain was worsened by prolonged standing and a lot of walking and was improved by ice and elevation. She did not report flare-ups. She had functional loss or impairment described as inability to walk for prolonged periods of time and difficulty climbing up stairs for the right knee. Right knee flexion was to 90 degrees and extension was to 0 degrees. Left knee flexion was to 140 degrees and extension was to 0 degrees. There was evidence of pain with the right knee which caused functional loss such as difficulty with running and driving for prolonged periods of time. There was no evidence of pain with the left knee. There was no evidence of crepitus or localized tenderness or pain on palpation. She was able to perform repetitive-use testing with at least three repetitions. Right knee flexion ended at 85 degrees and extension ended at 0 degrees. Pain caused functional loss in the right knee. Pain significantly limited functional ability with repeated use over time in the right knee. This was described right knee flexion ending at 85 degrees flexion and 0 degrees extension and left knee flexion ending at 140 degrees and 0 degrees extension. Additional contributing factors included interference with standing for the right knee. She did not have muscle atrophy or ankylosis. The bilateral shin splints were described as shin splints requiring treatment for less than 12 consecutive months. She occasionally used a brace on her right knee.

An August 2021 scan of the left tibia-fibula was negative. It showed no evidence of abnormality or shin splint. An August 2021 scan of the right tibia-fibula was also negative. It showed no evidence of abnormality or shin splint.

In an August 2021 knee and lower leg conditions DBQ, the Veteran stated that she dragged her left knee. She reported over the years she had some bruising and developed arthritis in the left knee. She recalled having bilateral stress fractures right after service. She reported that her knees were getting worse. The left knee was more tender and gave out and swelled up. She was told to take Motrin and elevate her knee as needed. She reported her shin splints had gotten worse and dealt with pain every day and that her knees had been hyperextended for a long time. She had throbbing pain in the right knee and shooting pain in her left knee. She did not report flare-ups. She reported functional loss or impairment described as difficulty with standing and walking for long periods and bending. She had a history of frequent effusion described as the knee swelling often as much as weekly and having to prop her left knee up and apply ice to help swelling. She reported sitting and walking for long periods because of her left knee swelling. The right knee was not tested for the duration of the examination. Flexion ended at 110 degrees and extension ended at 5 degrees in the left knee. She had limitation of endpoint active motion due to associated pain. Passive range of motion was to 120 degrees flexion in the left knee and was the same extension as active range of motion. She had limitation of endpoint active motion due to associated pain. There was evidence of pain in active and passive motion in the left knee which caused functional loss described as: when the Veteran is in pain, she is less likely to perform daily tasks to include prolonged sitting and walking because of the pain and/or tasks that would aggravate the pain (e.g., bending). There was evidence of crepitus but no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the left knee. She was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions in the left knee. Pain significantly limited functional ability with repeated use over time described as flexion to 100 degrees and extension to 5 degrees in the left knee. She did not have muscle atrophy or ankylosis. It was noted that the Veteran had shin splints with treatment for less than 12 consecutive months in the left knee.

2. Entitlement to a rating in excess of 10 percent for shin splints of the left leg

The Veteran generally asserts that the assigned 10 percent rating under DCs 5262-5260 does not adequately reflect the severity of her shin splints of the left leg. The period on appeal begins on May 7, 2013, the date of the Veteran's claim for an increased rating.

The Veteran's shin splints of the left leg are currently rated under 38 C.F.R. § 4.71a, DCs 5262-5260.

Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DCs 5260 and 5261 were unchanged.

Under DC 5260, a 10 percent rating is assigned when flexion of the knee is limited to 45 degrees. A 20 percent rating is assigned when flexion of the knee is limited to 30 degrees. A 30 percent rating is assigned when flexion of the knee is limited to 15 degrees. 38 C.F.R. § 4.71a.

Under DC 5261, a 10 percent rating is assigned when extension of the knee is limited to 10 degrees, a 20 percent rating is assigned when extension is limited to 15 degrees, a 30 percent rating is assigned when extension is limited to 20 degrees, a 40 percent rating is assigned when extension is limited to 30 degrees, and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a.

DC 5262 provides ratings for impairment of the tibia and fibula. Prior to February 7, 2021, a 10 percent rating was assigned where knee or ankle disability was "slight," and a 20 percent rating was assigned where it was "moderate."

Effective February 7, 2021, DC 5262 provides that impairment of the tibia and fibula will be assigned a 40 percent rating where there is nonunion with loose motion, requiring brace. Malunion of the tibia and fibula will be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee. The revised criteria also provide for ratings where there is malunion of the tibia and fibula with medial tibial stress syndrome (MTSS) or shin splints. A 10 percent rating is assigned for MTSS or 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 rating is assigned for MTSS or 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 assigned for MTSS or 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.

With regards to DCs 5260 and 5261, the Board finds that from May 7, 2013, flexion of the left knee was not limited to 30 degrees, and extension of the left knee was not limited to 15 degrees. In this case, range of motion testing has shown active left knee flexion as 45 degrees or greater and active left knee extension as 10 degrees or less. From May 7, 2013, the evidence of record shows that flexion was, at its worst, limited to 70 degrees, and extension was, at its worst, limited to 5 degrees.

With regard to functional loss, as discussed above, the Board has also considered the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the left knee was not additionally limited to the point of demonstrating flexion limited to 30 degrees or extension limited to 15 degrees. The Veteran is competent to report her perceived level of pain and functional impairment and her complaints are acknowledged. On review, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Considering the duration and severity of the vast majority of reported flare-ups during the appeal period, along with the examination findings, the disability picture does not more nearly approximate flexion limited to 30 degrees or extension limited to 15 degrees, even with pain and on flare-ups, and a rating greater than 10 percent is not warranted under DCs 5260 or 5261.

The Board has also considered entitlement to a higher rating based on DC 5262, relating to an impairment of the tibia and fibula, but no higher rating is warranted based on the criteria in effect prior to February 7, 2021, or the criteria in effect thereafter. In this case, the Veteran did not exhibit malunion of the tibia at any time during the appeal period. On the contrary, the evidence of record shows that the Veteran had shin splints that were described as "mild" in severity. Thus, there is no evidence of malunion of the tibia and fibula with moderate knee or ankle disability.

From February 7, 2021, the Veteran's shin splits were unresponsive to shoe orthotics or other conservative treatment, but they did not require treatment for 12 consecutive months or more, and there was no surgical intervention. For a 20 percent rating, the newly amended DC 5262 requires "treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment." (Emphasis added.) The provisions of DC 5262 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision had to be met). The Board finds the conjunctive "and" used in the newly amended regulation means that all three elements must be present for a 20 percent rating. Here only one element is present. Thus, a rating in excess of 10 percent is not warranted under DC 5262 based on the old or the newly amended rating criteria.

Neither the Veteran nor the record raise the applicability of DCs other than those under which she is already rated.

In summary, a rating in excess of 10 percent is not warranted for the Veteran's shin splints of the left leg from May 7, 2013.

3. Entitlement to a rating in excess of 10 percent for right knee tendonitis, to include shin splints of the right leg

The Veteran generally asserts that the assigned 10 percent rating under DCs 5262-5260 does not adequately reflect the severity of her right knee tendonitis, to include shin splints of the right leg. The period on appeal begins on May 7, 2013, the date of the Veteran's claim for an increased rating.

The Veteran's right knee tendonitis, to include shin splints of the right leg, is currently rated under 38 C.F.R. § 4.71a, DCs 5262-5260. These rating criteria are laid out in the section above.

With regards to DCs 5260 and 5261, the Board finds that from May 7, 2013, flexion of the right knee was not limited to 30 degrees, and extension of the right knee was not limited to 15 degrees. In this case, range of motion testing has shown active right knee flexion as 45 degrees or greater and active right knee extension as 10 degrees or less. From May 7, 2013, the evidence of record shows that flexion was, at its worst, limited to 90 degrees, and extension was, at its worst, limited to 5 degrees.

With regard to functional loss, as discussed above, the Board has also considered the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the right knee was not additionally limited to the point of demonstrating flexion limited to 30 degrees or extension limited to 15 degrees. The Veteran is competent to report her perceived level of pain and functional impairment and her complaints are acknowledged. On review, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. Considering the duration and severity of the vast majority of reported flare-ups during the appeal period, along with the examination findings, the disability picture does not more nearly approximate flexion limited to 30 degrees or extension limited to 15 degrees, even with pain and on flare-ups, and a rating greater than 10 percent is not warranted under DCs 5260 or 5261.

The Board has also considered entitlement to a higher rating based on DC 5262, relating to an impairment of the tibia and fibula, but no higher rating is warranted based on the criteria in effect prior to February 7, 2021, or the criteria in effect thereafter. In this case, the Veteran did not exhibit malunion of the tibia at any time during the appeal period. On the contrary, the evidence of record shows that the Veteran had shin splints that were described as "mild" in severity. Thus, there is no evidence of malunion of the tibia and fibula with moderate knee or ankle disability.

Additionally, from February 7, 2021, the Veteran did not have shin splints requiring treatment for no less than 12 consecutive months that were unresponsive to surgery. As explained in the prior section, the new DC 5262 is conjunctive and requires all three elements to be present in order to warrant a 20 percent rating. Thus, a rating in excess of 10 percent is not warranted under DC 5262 based on the old or the newly amended rating criteria.

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Based on the foregoing, entitlement to a rating in excess of 10 percent for right knee tendonitis, to include shin splints of the right leg, is denied.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Minock

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.