Citation Nr: 21006545 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-19 428 DATE: February 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for lumbosacral strain is denied. Entitlement to a disability rating of 10 percent, but no higher, for right leg shin splint is granted. FINDINGS OF FACT 1. The Veteran’s low back pain with recurrent strain or spasms does not result in consistent and credible limited range of motion measuring as forward flexion between 30 and 60 degrees of the thoracolumbar spine, or total range of motion of less than 120 degrees of the thoracolumbar spine, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or is there ankylosis of the spine. 2. The Veteran stated that he has experienced pain related to right shin splint during the appeal period which affected his ability to walk and to perform certain work functions. 3. At the May 2019 Board hearing, the Veteran, through his attorney, stated that a 10 percent disability rating for right leg shin splint is an acceptable determination. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an evaluation of 10 percent, but no higher, for right leg shin splint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code (DC) 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2008 to April 2014, to include service in Iraq and Afghanistan. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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 are 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 his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. 1. Entitlement to a disability rating in excess of 10 percent for lumbosacral strain The Veteran contends that his lumbar spine disability is worse than contemplated by the current 10 percent disability rating. After a thorough review of the evidence, the Board finds that a rating in excess of 10 percent for the lumbar spine disability categorized as lumbosacral strain is not warranted. 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The Veteran is currently rated at 10 percent for low back pain with a history of spasms and strain under Diagnostic Code 5237. The RO granted a 10 percent rating for low back strain in an October 2014 rating decision and the Veteran has appealed since that decision for a higher percentage. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or if there is muscle spasm or guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of height of 50 percent or more; 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71, DCs 5235 to 5243. The Veteran underwent a VA thoracolumbar spine examination in August 2014. The Veteran’s forward flexion was measured at 90 degrees or greater, with pain exhibited at 80 degrees. The veteran exhibited full range of motion on all measurements to a total of 240 degrees. After repetitive testing, forward flexion was 85 degrees and total range of motion was 235 degrees. The Veteran reported pain and the examiner reported tenderness upon touching the back. There was no ankylosis. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was normal muscle strength. There was no muscle atrophy. There was no radiculopathy reported. There was no IVDS. The examiner noted no arthritis based on imaging studies. The X-rays showed normal lumbar vertebrae in height and alignment. The examiner noted the X-rays showed normal mineralization and unremarkable soft tissue with an overall impression of “normal lumbar spine.” On the associated Gulf War exam, the Veteran reported low back pain with spasms that had been occurring during and since service. He reported that he utilizes both over the counter and prescription medications to alleviate back symptoms. A February 2015 CAPRI note shows that the Veteran was complaining of acute back pain after shoveling snow. The provider suggested physical therapy and weight loss. A March 2015 CAPRI note states that the Veteran was seen for back pain. The medical provider noted that the Veteran had gained 50 pounds since service and did not exercise, however he was able to bend to 8 inches from the floor. The Veteran had a decision review officer hearing in May 2015. Regarding his back, he stated that it seemed to be worsening from spasms to strains and that he was taking medication to alleviate the pain. The Veteran underwent a VA thoracolumbar spine examination in December 2015. The examiner noted that an X-ray from February 2015 showed a normal spine. The Veteran reported ongoing pain in the back, that it is worse in the morning and that he has medication for the pain. The Veteran’s forward flexion was to 15 degrees and total range of motion was 55 degrees. Upon repetitive testing, forward flexion measured to 5 degrees and total range of motion was 35 degrees. There was no ankylosis. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was normal muscle strength. There was no muscle atrophy. There was no radiculopathy reported. There was no IVDS. The examiner left the following comments regarding malingering: The veteran’s range of motion testing is of questionable validity. He can only move minimally on formal testing and appears to be able to bend his back more easily when getting out of a chair and off the exam table. He also complains of lower back pain with axial compression and simulated lumbar rotation which should not cause low back pain. He is not able to perform strength testing due to give away weakness. He also has significant pain to light touch to the lower back, inconsistent with a mechanical low back condition such as arthritis, degenerative disc disease or strain. He had trouble tolerating straight leg testing bilaterally and was able to straighten his knees while in the seated position more easily. Shortly after the December 2015 examiner, the Veteran’s attorney submitted a letter summarizing findings of the exams and medical records. The attorney stated that the Veteran had completed physical therapy for his back and still has pain. A May 15, 2015 CAPRI note states that the Veteran went to one session of physical therapy but subsequently VA removed him from PT because he missed appointments. The attorney requested a CT scan to investigate other possible etiologies for the Veteran’s back pain. The Veteran underwent a VA PTSD examination in December 2015. The examiner noted that although the Veteran did exhibit symptoms of PTSD and likely suffered from PTSD, that his “behaviors observed during today's evaluation were a marked departure from his presentation in his recent interactions with Mental Health staff… It is possible that due to the discrepancies in the Vet’s behaviors and self-report today and his presentation during his most recent clinical encounters that he has continued to attempt to portray his symptoms and impairment as more severe than they actually are.” At a December 2015 VA examination for shin splints, the VA medical examiner commented, “Range of motion of the knee is of questionable validity. Measurements varied significantly. He also was able to bend his left knee to 90 degrees when repositioning himself on the exam table.” In March 2016, VA performed an MRI of the Veteran’s back. The medical provider noted that the “MRI of the spine was completely normal. No evidence of pathology or nerve impingement. Structures appear solid and aligned.” A medical provider called to discuss the MRI with the Veteran who acknowledged attending only one session of PT and agreed to take on another consult for PT as the medical provider suggested that the back spasm issue should respond well to PT. In August 2016, the Veteran reported having lost 15 pounds of weight unintentionally and generally being more active as he currently worked at a meat packing plant. In August 2017, the Veteran had a home visit for caregiving evaluation. The Veteran and caregiver both reported that the Veteran needed reminding to bathe but did not state that the Veteran was physically unable to bathe himself or needed assistance. At a November 2017 VA weight loss program appointment, the Veteran reported he could walk for activity but had ongoing back pain. At a February 28, 2018 VA appointment for chief complaint of low back spasm, the medical provider noted that the Veteran reported staying at home all day and “hasn’t been employed for several years perhaps.” The medical provider noted full range of motion for all extremities. A note stated that the Veteran was “concerned” about his disability ratings for various claims and had his attorney working on it. The VA provider made a chiropractic consultation for the Veteran’s back as well as prescribed medication for pain. The note states the Veteran needs to “… move daily. Patient is obese, sedentary and the low back spasticity will only worsen as muscles decondition more. This is NOT an intrinsic back anatomy problem. MRI form [sic] 2016 showed no evidence of DDD, etc. Consider PT consult.” On March 13, 2018, the Veteran first visited with chiropractor M.W. who evaluated the Veteran and did X-rays of the spine. According to M.W., the X-rays showed “left lumbar list that is mild and low right ilium of 4mm.” The Veteran reported back pain and stiffness. The Veteran reported that the pain radiates into both thighs. The evaluation stated that the chiropractor planned to treat the Veteran daily for two weeks, and then three times per week until such time as two times per week is appropriate and then one time per week. In the November 2019 statement to the Board, the Veteran wrote that he attended 18 treatments with this chiropractor, however, the records do not document such a number of visits. The November 2019 lay statement says that “there are no private medical records to submit, they have already been submitted to the Board.” In the letter accompanying these chiropractic records from the Veteran’s attorney, he wrote that there was “a grant of 18 visits” and the accompanying VA referral sheet with the chiropractic consultation sheet shows an advanced approval for up to 18 visits until the expiration of one year, that is until March 2019. In April 2018, the Veteran had a home visit for caregiving evaluation. The Veteran’s caregiver reported bathing the Veteran from the knees down because the Veteran says washing low down was difficult due to his back problem. Caregiver stated she had requested a bath chair and the VA staff did not see it in the record, so placed a request for consult for bath chair from provider. Although the caregiver mentioned back pain, there was no discussion of whether the Veteran had continued to attend chiropractic treatment after the initial March 13, 2018 consultation appointment. A May 2018 letter from the Veteran’s attorney with these records states that he learned from chiropractor M.W. that he did not use a goniometer to measure range of motion and referred the attorney to S.M. for such measurements. An April 25, 2018 letter from chiropractor S.M. included range of motion measurements of forward flexion of the spine to 22 degrees, and total range of motion to 84 degrees. The chiropractor S.M. noted pain on motion. The April 25, 2018 range of motion measurements for the lumbar spine for this Veteran from S.M. include photographs of the test measured in the “inclinometric” manner. The use of a goniometer in the measurement of limitation of motion is indispensable and required in examinations. See 38 C.F.R. § 4.46. Even if measurements from an inclinometer are assumed to be comparable to measurements using a goniometer, as long as the inclinometer was properly zeroed, calibrated, functioning properly, applied to the patient properly, and corrected for rotational error, in this instance, the range of motion readings are inconsistent with other evidence in this Veteran’s healthcare record. A January 2019 phone note for the caregiver program states that the new caregiver said he needs to help the Veteran bathe due to his back and remind him to bathe. In May 2019, the Veteran was afforded a Board hearing. Both the Veteran’s attorney and the Veterans Law Judge asked the Veteran if he had worked after 2014 and the Veteran stated that he had not worked since that time. The Veteran’s attorney referenced treatment or consultation with two different chiropractors, S.M and M.W. The attorney had previously submitted the chiropractic records. At a May 30, 2019 VA medical appointment, the Veteran complained on ongoing back pain and spasms. The provider noted “lumbar flexion and extension severely limited, paraspinal muscle spasm on left lumbar region on exam… able to easily stand from chair and get on/off exam table. Noticeable slouch.” The provider suggested a topical cream for the back and the Veteran had continued pain medication available. The provider offered a physical therapy consult but the Veteran declined because he wanted to do a sleep apnea study first. The Veteran reported he does not have a current caregiver but that his mother lived with him and his children. In September 2020, the Veteran had another VA thoracolumbar spine examination. The examiner confirmed a diagnosis of thoracolumbar strain. The Veteran reported daily flare-ups that occur with walking around or using stairs and alleviation with sitting in a chair. The Veteran’s forward flexion was to 80 degrees and total range of motion was 205 degrees. Upon repetitive testing, forward flexion measured to 70 degrees and total range of motion was 195 degrees. There was painful motion reported on all directions. There was no ankylosis. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was normal muscle strength. There was no muscle atrophy. There was no radiculopathy reported. There was no IVDS. Although VA examinations, CAPRI records, and chiropractic or other private records from medical providers are “competent” medical evidence to establish a current evaluation of lower back disability, a determination must be made as to whether these records are “credible” to support a disability rating in excess of the currently assigned lower back rating for this Veteran. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Factors to consider for purposes of credibility of evidence include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, and lay statements made during treatment. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, multiple VA medical providers have noted that the Veteran’s demonstrated movements upon examination or other information provided were of questionable validity due to inconsistencies. The record also shows inconsistent statements from the Veteran, for example claiming he has not worked since 2014, but also stating he was employed in 2016. Therefore, the overall record of lower back evaluation and treatment is competent evidence, but not credible or probative, in order to establish a higher than 10 percent disability rating for the lower back for the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the credibility, competence, and probative value of evidence). The Veteran is already rated at 10 percent for the lumbar spine. The next highest available rating requires the disability to manifest as forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, which warrants a 20 percent rating. 38 C.F.R. § 4.71, DCs 5235 to 5243. The Veteran’s medical treatment records do not document consistent and credible evidence that support an increase in excess of 10 percent for the lumbar spine disability. Accordingly, a rating in excess of 10 percent for lumbar spine disability is not warranted and the claim for an increased rating is denied. 38 C.F.R. § 4.7. 2. Entitlement to a compensable disability rating for right shin splint The Veteran contends that his right leg shin splint disability is worse than contemplated by the current non compensable rating prior to September 25, 2020. After a review of the evidence, the Board finds that a rating of 10 percent, but no higher, is warranted since the date of grant of entitlement to service connection, April 13, 2014, for right leg shin splint. The Regional Office granted a 10 percent rating for right leg shin splint with an effective date of September 25, 2020, in an October 2020 rating decision. The Veteran is currently rated at a noncompensable rating prior to September 25, 2020, and 10 percent for right leg shin splint from that date, under DC 5262. 38 C.F.R. § 4.71a. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The disability of shin splints is not specifically listed in the rating schedule; thus, it is to be rated by analogy under a closely rated disease or injury in which the functions affected, anatomical location, and symptomology are closely analogous. 38 C.F.R. § 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s service treatment records note that in March 2013, about one year prior to separation from service, the Veteran had shin splints in both legs. At the August 2014 VA examination, the Veteran demonstrated normal range of motion for the right ankle. The examiner diagnosed bilateral shin splints. At the May 2015 decision review officer hearing, the Veteran stated that after separation, both shins continued to be painful. At the job he had immediately after separation, the Veteran stated that he was expected to walk but instead would choose to drive due to painful shins, among other reasons. At a December 2015 VA examination for shin splints, the VA medical examiner commented, “Range of motion of the knee is of questionable validity. Measurements varied significantly. He also was able to bend his left knee to 90 degrees when repositioning himself on the exam table.” Nonetheless, the Veteran reported ongoing pain in the shins, for example, “if [he] walk[s] somewhere or if it’s cold out.” The examiner confirmed a diagnosis of bilateral shin splints. In the March 2017 Form VA-9, the Veteran reiterated ongoing pain in both shins related to shin splints. At the May 2019 Board hearing, the Veteran, through his attorney, stated that a 10 percent disability rating for right shin splints is an acceptable determination. The Board finds that this oral withdrawal of an appeal for a rating in excess of 10 percent, is (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant as expressed through his attorney in the Veteran’s presence. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The Veteran also stated that he has ongoing painful bilateral shins and that he ices them or uses Epsom salts to relieve the pain. The Board finds the Veteran’s right leg shin splint pain and tenderness more nearly approximates slight knee or ankle disability. The presence of pain and tenderness, itself, is shown to result in some functional impairment such that a compensable rating would be warranted. 38 C.F.R. §§ 4.40, 4.45. Accordingly, the Board grants the Veteran’s appeal for an increased rating to 10 percent, but no higher, for right leg shin splint from the date of entitlement to service connection. At his Board hearing, the Veteran and his attorney stated that a 10 percent disability evaluation for this disability would satisfy the Veteran. The Board’s action in granting the 10 percent rating throughout the course of the appeal is a grant of the benefit sought on appeal. Accordingly, the Board finds that the grant of 10 percent disability rating for right leg shin splint from date of entitlement to service connection fulfills the Veteran’s appeal. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.