Citation Nr: 21006769 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-29 151 DATE: February 5, 2021 ORDER Entitlement to service connection for a right leg disorder, to include shin splints, is denied. FINDINGS OF FACT The preponderance of the evidence is against finding that the Veteran’s right leg disorder, to include shin splints, began during active service, within a year of service, or is otherwise related to an in-service injury or disease CONCLUSIONS OF LAW The criteria for entitlement to service connection for a right leg disorder, to include shin splints, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1993 to August 2000; the United States Army National Guard from March 2003 to February 2004, October 2006, May 2008 and May 2009 to September 2010. The National Guard service also includes periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). For his meritorious service, he was awarded (among other decorations) the Combat Action Badge, the Bronze Star Medal, and the Iraq Campaign Medal with two Campaign Stars. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a VA Regional Office (RO). This matter was previously remanded by the Board in November 2016, June 2019 and most recently in September 2020 where the Board remanded the Veteran’s claim once again for an addendum VA medical opinion. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board in its’ September 2020 remand directed the RO to afford the Veteran a new VA examination to confirm the onset of the Veteran’s right leg condition diagnosed as shin splints. In addition, the examiner was asked to opine whether the Veteran’s shin splints, clearly and unmistakably preexisted service and if so, was it clearly and unmistakably aggravated by service during the active duty period from May 2009 to September 2010. The Board notes, that although the examiner did not use the phrase “clear and unmistakable” the September 2020 VA examiner wrote down the questions asked by the Board and then wrote a narrative under each question. He provided said opinions, addressed all relevant evidence of record including lay statements and medical evidence, then provided an opinion with appropriate rationale. Therefore, the Board finds the opinion substantially complied with the Board’s prior remand directives. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (recognizing that poorly drafted medical opinion not necessarily inadequate if it can otherwise be understood); McClaim v. Nicholson, 21 Vet.App. 321 (2007) (noting that although clarity is preferred, it “is not and cannot be demanded in every instance or finality would forever be delayed pending perfection in draftsmanship”). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott, 789 F.3d at 1381; Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for a right leg disorder, to include shin splints, is denied. Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran contends that his right leg disorder, diagnosed as shin splints, began during service and has continued to suffer the effects ever since. The Veteran has not alleged a specific injury or event during service relating to his shin splints however, the scope of his claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23Vet. App.1 (2009). As a threshold matter, under the law, active military service includes (1) active duty (AD), but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not a disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24)(B); 38 C.F.R. § 3.6(a). Here, the Veteran has active duty veteran status from February 1993 to August 2000 in the Marine Corps. Afterwards, the Veteran’s personnel records show that he served in the Army National Guard on active duty status in March 2003 to February 2004, January 2005 to June 2006, October 22, 2006 to October 27, 2006, May 3, 2008 to May 19, 2008 and May 2009 to September 2009. The Veteran’s personnel records also show that he served in the Army National Guard on periodic days of INACDUTRA. The record reflects that the Veteran’s lower leg condition was first diagnosed as shin splints in March 2008 with a noted history at that time of 7 to 8 months. The Board notes, that service treatment records are not available from May 2009 through September 20010. As a result, the Board, in September 2020, remanded to obtain an addendum VA medical opinion to address the lost records as well as to opine as to the onset and possible aggravation due to active duty service of the Veteran’s claimed condition. In the resulting September 2020 VA examination, the examiner opined that the Veteran’s shin splints did not have their onset during a period of qualifying service and there was no evidence of subsequent aggravation beyond its natural progression. He explained that the Veteran’s right leg disorder was first diagnosed as shin splints in March 2008. However, the onset of symptoms began 7 to 8 months prior and therefore, he opined the disorder existed outside any confirmed period of active duty and certainly prior to the period of active duty from May 2009 to September 2010. The examiner further explained that the Veteran’s current reports of “shin splint pain recurrence with activities” were simply the natural progression of his condition. Importantly, the examiner stated that although there are no STRs from 2009 to 2010, “if the condition was aggravated beyond its natural progression the effect would be currently present”. He further noted that there are no radiological changes nor other signs or symptoms of aggravation beyond what would be expected as the result of natural progression. The Board finds that the preponderance of the evidence indicates that the Veteran’s shin splints were incurred during a period outside of any confirmed period of active duty or ACDUTRA. Again, the Veteran was first seen complaining of shin splints in March 2008 with a noted history of 7 to 8 months. As such, the sole remaining issue before the Board is whether his condition was aggravated in a period of active duty or ACDUTRA. Generally, when addressing the issue of entitlement to service connection for a preexisting disability, the correct legal standard to apply is whether there is clear and unmistakable evidence that the preexisting disability did not undergo a worsening in service beyond that which would be due to the natural progression of the disability. This distinction is important, because "clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 141 (2003). When addressing Reserves service, such as ACDUTRA or INACDUTRA (or some combination thereof), however, the presumptions related to entitlement to service connection operate differently and typically do not apply. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Indeed, the presumption of soundness only applies for periods of ACDUTRA only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith, 24 Vet. App. at 45–46. In this case, the Veteran’s service treatment records for his period of service from May 2009 to September 2009 could not be found and, therefore, it is unknown whether the Veteran was provided an enlistment examination on entrance in May 2009. In any case, the Board finds that the evidence clearly and unmistakably shows the Veteran’s shin splints pre-existed his period of active duty and clearly and unmistakably was not aggravated during his period of active duty/ACDUTRA service. Again, the September 2020 VA examiner not only found the 2008 medical treatment records conclusive as far as when the shin splints started but gave concrete examples of what the Veteran’s shin splints would currently present as if there was in-service aggravation. In particular, the examiner noted that there would be radiological changes had the Veteran’s shin splints progressed beyond what would be expected, and, in this case, such changes were absent. The Board finds the opinion persuasive and, indeed, evidence of clear and unmistakable evidence that there was no in-service aggravation beyond natural progression of the Veteran’s pre-existing shin splints. For that reason, the Board finds the claim must be denied. In so determining, it is worth noting the Board has considered the Veteran’s lay statements describing his right leg pain through time, to include on runs during periods of active duty service. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469(1994). The Veteran is certainly competent to describe the circumstances of his military duties, the pain he felt during service, and the pain he felt since service. (Continued on the next page)   In contrast, the Veteran is not competent to comment on whether his shin splint pain through time was merely a natural progression or aggravated by some in-service event, such as running. In that regard, the September 2020 VA examiner competently explained that aggravation would be apparent through objective findings, such as radiological changes, which are absent in the Veteran’s case. The Board finds the examiner’s opinion to be persuasive in that regard and therefore of higher probative value. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.