Citation Nr: 21075968 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-33 129 DATE: December 22, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for right shin split is denied. 2. Entitlement to a combined rating in excess of 10 percent (based on a formulation of 10 percent under Diagnostic Code (Code) 5261 and 0 percent under Code 5260) for left shin splint is denied. FINDINGS OF FACT 1. Throughout, the Veteran's right shin splint disability is reasonably shown to have been manifested by painful, noncompensable limitation of flexion; it is not shown to have been manifested by ankle disability, compensable limitation of knee extension, knee instability, moderate (or greater) knee disability (other than already compensated pain), nonunion of the tibia and fibula, or shin splint requiring (and unresponsive to) surgery. 2. Throughout, the Veteran's left shin splint disability is shown to have been manifested by painful, noncompensable limitation of flexion; at no time is it shown to have been manifested by ankle disability, compensable limitation of knee extension, knee instability, moderate (or greater) knee disability (other than already compensated pain), nonunion of the tibia and fibula, or shin splint requiring (and unresponsive to) surgery. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for right shin splint is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5256-5263; 85 Fed. Reg. 76457 (Feb 7, 2021). 2. A rating in excess of 10 percent for left shin splint is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5256-5263; 85 Fed. Reg. 76457 (Feb 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1986 to August 1989, and had additional Reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision which, in relevant part, granted service connection for right and left shin splints, and assigned initial ratings of 10 percent, each, effective April 20, 2016. [As noted above, the left shin splint disability has been assigned a combined 10 percent rating under Codes 5260 and 5261.] In January 2020, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In February 2020 and May 2021, the Board remanded these matters for additional development. [Notably, an interim (August 2020) rating decision granted service connection for bilateral pes planus. Accordingly, that matter is no longer before the Board.] 1., 2. Entitlement to ratings in excess of 10 percent, each, for right and left shin splints is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial ratings assigned with the awards of service connection, the severity of the disabilities during the entire period from the awards of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. During the pendency of this appeal, the criteria for rating disabilities of the musculoskeletal system in the VA Schedule for Rating Disabilities was revised effective February 7, 2021. Those amendments did not result in changes to Codes 5256, 5258, 5259, 5260, 5261, or 5263. However, changes were made to Codes 5257 and 5262, as detailed below. Because the regulation changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's shin splint disabilities. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also 38 U.S.C. § 5110(g). Prior to February 7, 2021, there was no specific diagnostic code for shin splints. Therefore, the disability is to be rated by analogy. 38 C.F.R. § 4.20. The Agency of Original jurisdiction has rated the disability by analogy to the criteria in 38 C.F.R. § 4.71a, Codes 5260 and 5261. Prior to February 7, 2021, under Code 5257, knee impairment manifested by recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent (the maximum) when severe. Effective February 7, 2021, Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent (maximum) rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. [Note (1) explains that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) explains that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See Code 5257 (Effective February 7, 2021).] Under Code 5260, for limitation of leg flexion, a 0 percent rating is warranted when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a (maximum) 30 percent rating when limited to 15 degrees. Under Code 5261, for limitation of leg extension, a 0 percent rating is warranted when extension is limited to 5 degrees; a 10 percent when limited to 10 degrees; a 20 percent when limited to 15 degrees; a 30 percent when limited to 20 degrees; a 40 percent when limited to 30 degrees; and (a maximum) 50 percent, when limited to 45 degrees. Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Prior to February 7, 2021, under Code 5262, for impairment of the tibia and fibula, 10, 20, and 30 percent ratings were warranted for malunion of the tibia and fibula with slight, moderate, or marked knee or ankle disabilities, respectively. A 40 percent rating was warranted for nonunion of the tibia and fibula with loose motion requiring a brace. [The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just" decisions. 38 C.F.R. § 4.6.] Effective February 7, 2021, under Code 5262 for impairment of tibia and fibula, a 0 percent rating is warranted for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted 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 warranted 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 warranted for medial tibial stress syndrome (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. And a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring brace. In evaluating musculoskeletal disabilities, the VA must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable diagnostic code criteria. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are only applicable in cases where a code's rating criteria are based on limitation of motion. As of February 7, 2021, Code 5262 does not contemplate limitation of motion as a rating basis. As such, 38 C.F.R. §§ 4.40 and 4.45 are not applicable to the new rating criteria of Code 5262. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Factual Background On September 2016 VA (fee basis) knee and lower leg conditions examination, the diagnosis was bilateral shin splints. The Veteran reported that the shin splints manifest in pain from the knees down to the feet when walking. He reported flare-ups described as "swelling, stiffness, and pain" which make it "hard to bend and stand." The examiner opined that the shin splints effect knee range of motion (ROM), but not ankle ROM. Initial ROM testing showed right knee flexion was to 90 degrees and extension was (full) to 0 degrees; left knee flexion was to 50 degrees and extension was (full) to 0 degrees. Repetitive use testing did not result in additional functional or ROM loss. The examiner noted that during flare-ups or after repeated use over time, both knees would experience pain, fatigue, and weakness; however, based on examination and the Veteran's statements, she estimated that ROM would remain unchanged. Muscle strength testing of both knees showed 4/5 strength (in flexion and extension), bilaterally. There was no muscle atrophy or ankylosis of the knees. There was no history of recurrent subluxation or lateral instability. Joint stability testing of the knees was normal. [The examiner noted that the Veteran had a prior meniscectomy on each knee.] X-rays showed the right tibia and fibula were normal; the left tibia and fibula "validates a former left shin splint and possibly an old, healed fracture." The examiner noted that the Veteran regularly uses bilateral knee braces and occasionally uses crutches or a cane; the braces are used for pain and to help with swelling; the crutches are used when it is hard to move, and the pain is increased; the cane is used after crutches for pain and mobility. The examiner opined that the shin splints impact the Veteran's ability to work because he cannot stand for long periods or walk long distances; his mobility is limited, and he cannot squat or carry heavy objects. A May 4, 2018 VA emergency department record notes the Veteran's complaints of pain in the front of both legs on walking. He reported that he takes meloxicam and hydrocodone, and that the pain improves with rest. On examination, there was anterior shin tenderness to palpation. The impression was shin splints/bilateral leg pain. The provider recommended the Veteran continue meloxicam; she prescribed compression socks and analgesic balm to use 3-4 times per day and recommended use of ice packs after walking; she also recommended physical therapy (PT). A May 16, 2018 VA treatment record notes the Veteran's report of chronic, "ongoing pain in both legs below [the] knees and lately worsening." He reported claudication pain; he also reported not working since March 2017 because of chronic back pain. A June 2018 VA treatment record notes the Veteran's report of shin pain, rated 8/10. He reported that use of compression socks "helps." His pain is increased in the morning, with high-impact exercise, and when moving a lot on his feet; the pain is decreased by the compression socks, rest, ice, and getting off his feet. He ambulated without assistive device. Strength was within functional limits and sensation was intact. January and June 2019 VA treatment records note the Veteran has bilateral knee pain status post bilateral meniscus repairs. The records note he was attempting to increase low-impact cardiac exercise, and that he treats his shin pain with compression stockings and ice packs. At the January 2020 Board hearing, the Veteran expressed his belief that his shin splints had worsened since his last VA examination. In February 2020, the Board remanded these matters to obtain outstanding private treatment records and for an examination to ascertain the current severity of the disabilities. On July 2020 VA (fee basis) knee and lower leg conditions examination, bilateral shin splints were diagnosed. The Veteran reported bilateral shin pain with flare-ups that occur 3-4 times per week, manifesting in "moderate to severe" pain. He reported that right shin flare-ups last 3-4 days, and that left shin flare-ups last 4-5 days. Both are precipitated by standing too long on concrete or when bare-footed on hard surfaces; both are alleviated by ice. He reported that the flare-ups interfere with running, jumping, squatting, kneeling, and standing. The examiner opined that the shin splints do not affect ROM of the knees or ankles. Initial ROM testing showed right knee flexion was to 70 degrees and extension was (full) to 0 degrees; left knee flexion was to 80 degrees and extension was (full) to 0 degrees. Pain was noted on palpation. Repetitive use testing did not result in additional functional or ROM loss. The examiner noted that during flare-ups or after repeated use over time, both knees would experience pain, fatigue, weakness, and lack of endurance. Based on examination and the Veteran's statements, she estimated that ROM would remain unchanged during repeated use over time. During flare-ups, she estimated that right knee ROM would be 0 to 65 degrees, and that left knee ROM would be 0 to 75 degrees. Muscle strength testing of both knees showed 4/5 strength (in flexion and extension), bilaterally. There was no muscle atrophy or ankylosis of the knees. There was no history of recurrent subluxation; the examiner checked the respective boxes to indicate there was a history of slight instability, but subsequently wrote that any knee instability is due to the prior meniscectomies and "not due to shin splints." Joint stability testing was not indicated. The examiner noted that the Veteran occasionally uses bilateral knee braces, but was not wearing them on examination. The examiner opined that the shin splints impact the Veteran's ability to work because they interfere with running, squatting, jumping, kneeling, and standing. She opined that he "can perform strenuous and sedentary activities if he can avoid his limitations." In response to the February 2020 remand directives, the examiner noted that the Veteran walked up stairs to enter the clinic and did not wear knee braces. She acknowledged his report of pain rated "up to a 10/10," but noted there were no non-verbal signs of pain (such as wincing, facial wrinkling, etc.) during examination. She noted that the limitations pertaining to occupational functioning could encompass both shin pain etiology and bilateral knee pain etiology. In May 2021, the Board remanded these matters to obtain outstanding private treatment records and for an examination to ascertain the current severity of the disabilities, to include consideration of the new rating regulations. On June 2021 VA knee and lower leg examination, the diagnosis was bilateral shin splints. The Veteran reported that his current symptom is "occasional shin pain." He reported and that he uses a prescribed cream (name unknown) as medication, but did not report surgery or other treatment. He denied flare-ups of the knees and legs. Initial ROM testing showed ROM of both knees was 0 to 140 degrees (normal). Repetitive use testing did not result in additional functional or ROM loss. The examiner (Dr. K.S.) opined that the evidence (including lay statements) does not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time. [As the Veteran did not endorse having flare-ups, estimated ROM during flare-ups was not provided.] There was no muscle atrophy or ankylosis of the knees. There was no history of recurrent subluxation, persistent instability, or recurrent patellar instability. The Veteran did not require a prescription for a cane, walker, crutches, or braces. The examiner checked the appropriate box to indicate the Veteran's shin splints are unresponsive to shoe orthotics or other conservative treatment; there was no history of shin splint surgery. The Veteran reported occasional use of a cane. The examiner opined that the Veteran's shin splints do not impact his ability to work. In response to the Board's May 2021 remand directive to opine whether the replated impairment is slight, moderate, moderately severe, or severe, the physician explained that there is no fatigue, weakness, and difficulty ambulating or with propulsion and/or locomotion due to the shin splints. He opined that there is "No functional impairment because normal gait and station with and without cane." He also noted that there was no tenderness to palpation of the shins, and there were no signs of pain during physical exam. He subsequently wrote that there has been "No treatment for no less than 12 consecutive months" and there is "No indication to be unresponsive to either shoe orthotics or other conservative treatment (in one or both lower extremities)." In an August 2021 addendum opinion, Dr. K.S. opined that Code 5262 best reflects the disability picture of the Veteran's shin splints. He explained that Codes 5260 and 5261 "do not best reflect the [V]eteran's shin splint disability picture...because [V]eteran does not have any current signs or symptoms of shin splints. Veteran has no prescription medications needed. Normal gait and no[t] tender to palpation of the area." In a September 2021 addendum opinion, Dr. K.S. opined that for the period prior to February 7, 2021 (i.e., prior to implementation of the updated Codes), Code 5257 is the most appropriate for rating purposes because "VA stated that the accurate code (5262) cannot be used for this particular Veteran." He noted that there is no limitation of flexion (Code 5260) or extension (Code 5261), no genu recurvatum (Code 5263), no dislocated cartilage with locking and effusion (Code 5258), and no ankylosis (Code 5256). "That leaves 5257 (other impairment of knee). While it may not be the most accurate since shin splints aren't necessarily a knee condition, it is the most accurate of the available choices." [The Board notes that in August 2021, VA received a VA Form 21-4142 which identified treatment at Baptist Health System from 2002 to July 2017. In September 2021, following mailed and facsimile correspondence, the provider notified VA that they would not provide a free copy of the records and would not make an exception. Accordingly, the record request was closed "as Fee Required." 38 C.F.R. § 3.159(c). The duty to assist a claimant is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991). The Veteran has not submitted those records.] Analysis On longitudinal review of the record, the Board finds that ratings in excess of 10 percent each, for right and left shin splints, are not warranted. Initially, the Board notes that both the September 2016 and February 2020 examiners opined that the Veteran's shin splints do not affect ankle ROM; therefore, codes pertaining to the ankles are not implicated. Although the February 2020 examiner opined that the Veteran's shin splints do not affect knee ROM, the September 2016 examiner opined that they do impact knee ROM; therefore, the Board will consider the knee Codes below (in addition to Code 5262). The Board also notes the applicability of Codes 5256, 5258, 5259, and 5263 has been considered throughout the appeal period. However, as the evidence of record does not show that pathology required for ratings under such codes (ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or genu recurvatum of the knee) was shown during the evaluation period, those Codes do not have applicability in these matters (and will not be further discussed). The Veteran's shin splints have been each been assigned a 10 percent rating under knee limitation of motion Codes (5260 and 5261), for the left shin splints a combined 10 percent). See November 2021 codesheet. The Board has considered whether higher ratings are warranted at any period under those Codes, but finds they are not. The Veteran's right shin splint has been assigned a 10 percent rating under Code 5260 for painful motion with limitation of flexion. At no time under consideration is his right knee flexion shown to have been limited to 30 degrees (so as to warrant the next higher, 20 percent rating), or is right knee extension shown to have been limited to 10 degrees (so as to warrant a separate compensable rating for limitation of extension). On September 2016 examination, right knee ROM was 0 to 90 degrees. On July 2020 examination, right knee ROM was 0 to 70 degrees (with flexion estimated at 65 degrees during flare-ups, with consideration of pain, fatigue, weakness, and lack of endurance). And on June 2021 examination, right knee ROM was 0 to 140 degrees (normal), without reported flare-ups. Accordingly, a rating in excess of 10 percent for right shin splint is not warranted based on limitation of ROM (considering both flexion and extension), including during flare-ups or after repeated use over time. The Veteran's left shin splint has been assigned a combined 10 percent rating (based on a formulation of 10 percent under Code 5261 and 0 percent under Code 5260). See November 2021 codesheet. At no time under consideration is his left knee flexion shown to have been limited to 45 degrees (so as to warrant a higher, 10 percent rating), or is left knee extension shown to have been limited at 15 degrees (so as to warrant the next higher, 20 percent rating). On September 2016 examination, left knee ROM was 0 to 50 degrees (noncompensable). On July 2020 examination, left knee ROM was 0 to 80 degrees (with flexion estimated at 75 degrees during flare-ups, with consideration of pain, fatigue, weakness, and lack of endurance). And on June 2021 examination, left knee ROM was 0 to 140 degrees (normal), without reported flare-ups. Accordingly, a (combined) rating in excess of 10 percent for left shin splint is not warranted based on limitation of ROM (considering both flexion and extension), including during flare-ups or after repeated use over time. The Board has also considered whether a separate rating is warranted under the former version of Code 5257 throughout the appeal period, but finds it is not. The evidence is against a finding of right or left knee instability at any time due to shin splints. On September 2016 examination, stability testing was normal; the Veteran reported the use of knee braces for pain and swelling, not instability. On July 2020 examination, the examiner specifically noted that any knee instability is due to (prior unrelated) meniscectomies and "not due to shin splints." And on June 2021 examination, the examiner found that there was no history recurrent subluxation, persistent instability, or recurrent patellar instability. Although Dr. K.S. opined in a September 2021 addendum opinion that Code 5257 is the most appropriate for rating purposes prior to February 7, 2021, he also acknowledged that Code 5257 may not be the most accurate since shin splints are not necessarily a knee condition. The Board finds that the totality of the evidence is against a finding that a separate rating is warranted under the former version of Code 5257 throughout the appeal period. From February 7, 2021, the Board has also considered whether a separate rating is warranted under the revised version of Code 5257, but finds it is not. As noted above, the competent (medical) evidence is against a finding that the Veteran's shin splints manifest in objective right or left knee instability during this period. See June 2021 VA knee examination report. Furthermore, the July 2020 examiner specifically opined that any knee instability is due to (prior unrelated) meniscectomies and "not due to shin splints." Accordingly, a separate rating under Code 5257 for other knee impairment (including instability) is not warranted from February 7, 2021 under the revised governing regulatory criteria. The Board has considered whether a higher rating is warranted for the Veteran's right and left shin splints under the former version of Code 5262 throughout the appeal period. As the Veteran is already being compensated for painful limitation of motion of the knees, the Board finds that a separate rating for pain as a symptom of the shin splints would violate the prohibition on pyramiding. 38 C.F.R. § 4.14. Therefore, the Board has considered whether the right and left shin splints manifested in a moderate knee disability to warrant the next higher (20 percent) rating under Code 5262, but finds the evidence is against such a finding. Muscle strength testing was at least 4/5, bilaterally, throughout; there was no muscle atrophy. Although the Veteran reported regular use of knee braces and occasional use of crutches/cane in September 2016, he subsequently reported only occasional use of knee braces on July 2020 examination and occasional use of a cane on June 2021 examination. Furthermore, on July 2020 examination, the examiner noted that the Veteran walked up stairs to enter the clinic, did not wear knee braces, and showed no non-verbal signs of pain (such as wincing, facial wrinkling, etc.) during examination, even acknowledging his report of pain "up to a 10/10." And on June 2021 examination, the examiner opined that there is "No functional impairment" because the Veteran's gait and station were normal (without cane), and there were no signs of pain during the physical examination. Considering the foregoing, the Board finds the evidence weighs against a finding of a moderate (or greater) left or right knee disability due to impairment of the tibia and fibular, and that higher ratings under the former Code 5262 are not warranted. From February 7, 2021, the Board has considered whether a higher rating is warranted under the more appropriate revised Code 5262, but finds it is not. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (when a disability, such as shin splints, is listed in the Rating Schedule, rating by analogy is not appropriate); see also Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019). In order to warrant the next higher (20 percent rating) for right or left shin splint, the evidence must show treatment for no less than 12 months, and that the shin splint is unresponsive to surgery and either shoe orthotics or other conservative treatment. Here, the evidence does not show, nor does the Veteran assert, that he underwent surgery for his shin splints. Accordingly, the criteria for individual 20 percent ratings, or a single 30 percent rating, are not met for the right and left shin splint disabilities. Accordingly, the Board finds that ratings in excess of 10 percent each, for right and left shin splints, are not warranted at any time during the period under consideration (including with consideration of the revised rating criteria for shin splints and knee disabilities). The preponderance of the evidence is against these claims. Therefore, the benefit of the doubt rule does not apply; the appeal in these matters must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the record does not show, nor has the Veteran alleged, that he is unemployable due to his right and left shin splint disabilities. As noted above, he reported that he stopped working due to (nonservice-connected) back pain. Consequently, the matter of entitlement to a total rating based on individual unemployability (TDIU) is not raised by the record in the context of the instant claim for increase. See Shinseki v. Rice, 22 Vet. App. 447 (2009). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.