Citation Nr: 21009940 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-21 437 DATE: February 23, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right leg shin splints is denied. The appeal on the issue of a total disability based on individual unemployability (TDIU) has been withdrawn. FINDINGS OF FACT 1. During the period on appeal, the evidence demonstrates impairment of the tibia and fibula with slight knee or ankle disability due to right leg shin splints. 2. In November 2020, prior to the promulgation of a decision in this appeal, the appeal on the issue of a total disability based on individual unemployability (TDIU) has been withdrawn by the Veteran on the record. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right leg shin splints have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262. 2. The criteria for withdrawal of the appeal on the issue of a total disability based on individual unemployability (TDIU) by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from March 2006 to October 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge during November 2013 and November 2020 Board hearings. The November 2013 hearing was conducted by a Veterans Law Judge that is no longer working for the Board. The subsequent November 2020 Board hearing was conducted by the Veterans Law Judge listed below. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 10 percent for right leg shin splints The Veteran was service connected for right leg shin splints in April 2009 and given a non-compensable rating. After a timely appeal, the RO assigned a 10 percent disability rating for right leg shin splints, effective October 20, 2007. The March 2018 SSOC on appeal denied a higher disability rating. The Veteran contends that she is entitled to a higher disability rating due to increased pain in the leg and functional limitations. The Veteran’s right leg shin splint disability has been evaluated under the provisions of 38 C.F.R. § 4.71a, DC 5262. Under this diagnostic code, which contemplates tibia and fibula impairment, malunion with a slight ankle disability warrants a 10 percent rating; malunion with a moderate ankle disability warrants a 20 percent rating; and malunion with a marked ankle disability warrants a 30 percent rating. Evidence of nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. Id. The words “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to the August 2018 Board remand, the Veteran was afforded a VA examination to determine the severity of her right leg shin splints disability. The examiner was also asked to determine whether such disability affects the functioning of the Veteran’s right ankle or knee and to perform range of motion testing as appropriate. During the March 2019 VA examination, the Veteran reported increased severity of pain with limited physical activities, an inability to walk long distances, and a constant dull-aching pain in the knees. The Veteran reported that both knees have decreased in stability, and that she takes Tylenol when needed. In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran exhibited full range of motion, with pain on flexion of the right knee. Joint stability testing of the right knee was also performed. In the “History” section of the examination, the examiner noted no right knee lateral instability, recurrent subluxation, or history of recurrent effusions. Upon examination, the examiner noted no instability. The record reflects a negative Lachman test, varus/valgus, and posterior drawer tests, all indicating normal stability of the right knee. Localized tenderness or pain on palpation of the infrapatellar region and shins was described as mild in severity, although the condition was not fully evaluated as it was outside the scope of that exam. When asked to clarify whether the Veteran’s right leg shin splints disability affects the functioning of the right ankle or knee, the examiner stated, “Veteran’s shin splint do not affect functionality of right ankle. Veteran’s decreased ROM in right knee is associated with PFPS.” A clarification opinion was obtained in July 2020 to determine whether the right knee patellofemoral pain syndrome (PFPS) diagnosed at the March 2019 VA exam is proximately due to or the result of the Veteran's service-connected right leg shin splint. The examiner stated, “Shin splints does not involve either ankle and/or knee joints.” The examiner further clarified, “Veteran's shin splint do not affect functionality of right knee.” This conclusion was supported by a thorough medical explanation of the pathophysiology of shin splints. See July 2020 Clarification Opinion. The Veteran contrasted this opinion with her testimony at the November 2020 Board hearing. The Veteran stated that the pain in her shins affects her ankles and knees. She stated, “…it’s affected me all the way down to my feet. To where I saw a podiatrist for it.” She indicated that the podiatrist “wanted to say that the…strain I’m putting up my legs is what was causing more of the pain down to my feet.” Concluding, “I did see a podiatrist for my feet. But again, it all related back to the shin splints.” The Veteran’s representative referenced a June 2017 private podiatry record which he stated contained “pretty significant findings on this.” The Veteran’s testimony was that the podiatrist performed surgery on the foot in order to relieve the pain that was caused by shin splints. Upon review of the private podiatry record, the Board finds that the evidence contained within it do not support the Veteran’s portrayal of the evidence, nor her theory of disability in any way. First, the purpose of the surgery referenced in the June 2017 consult was “to realign the position of the first toe and reduce the size of the bunion deformity.” Other treatment modalities were discussed, such as injection of local anesthetics and/or steroids, orthotic devices, stretching, physical therapy, and oral pain and anti-inflammatory medications. In regards to leg pain, it was hypothesized whether supporting the foot by way of orthotics and stretching will reduce the overutilization of the anterior leg muscles during the Veteran’s normal gait, which is the probable cause of her dull leg muscle pain. According to the podiatrist, the deformities in the foot are the likely source of pain in the leg. The Veteran and her representative mischaracterized the association between the right leg disability and foot disability to be the opposite, that the leg disability is causing the foot disability. The podiatrist diagnosed the Veteran with congenital metatarsus primus varus and hallux valgus. In lay terms, some people are born with a bone deformity where the big toe angles inward toward the second toe. This progresses in nature to form a bony bump on the outside of the foot commonly known as a bunion, which causes pain and inflammation. See https://pubmed.ncbi.nlm.nih.gov/6705355. This condition is separate and distinct from shin splints, as described by the March 2019 and July 2020 VA examiners. The private podiatrist noted, “This patient has a longstanding history or foot problems and her condition has been progressive in nature.” There is no mention of shin splints as any causative factor in the Veteran’s foot pain or resultant surgery. Congenital or developmental defects are not “diseases or injuries” within the meaning of applicable statutes and regulations. See 38 C.F.R. § 3.303(c), 4.9; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003). Based on all the evidence, both lay and medical, the Board finds the Veteran’s disability most closely approximates the criteria for a 10 percent rating for right leg shin splints. In evaluating the Veteran’s reported right leg pain, the Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. The degree of pain that has resulted in functional impairment of earning capacity has been contemplated by the rating the Veteran is currently assigned. This is evidenced by subjective complaints of low-grade pain to the area, and decreased pain in the right shin, reporting “right shin is better now”. May 2009 VA, April 2014 treatment records. This finding is also supported by objective evidence of only mild, or slight disability. An October 2016 bone scan revealed no evidence of shin splints. There was no pain noted on exam, muscle strength was 5/5. This is balanced by inconsistent reports of being able to perform daily activities. In October 2012, the Veteran reported she can stand for 20 minutes or so. In February 2014, she stated she is no longer able to run. In October 2016, the Veteran reported pain in her legs with all forms of activity and that sometimes she cannot stand long enough to take a shower. However, in June 2017, a private podiatry note states the Veteran exercises with a boot camp workout program. In a February 2018 VA treatment note, the Veteran stated she goes to World Gym and does CrossFit, which entails a lot of jumping, lunging, etcetera. When considering an overall disability picture, a rating in excess of 10 percent is not warranted because any symptomatology more than “slight” would likely be seen in objective findings such as impaired range of motion, ankylosis, recurrent subluxation, lateral instability, or genu recurvatum. Because none of those findings are present, no other diagnosis code is applicable. A preponderance of the evidence arguably weighs against service connection entirely, as three separate medical professionals have concluded that pain in the Veteran’s knee and/or ankle could not possibly be due to shin splints. However, service connection has already been granted and the Board will not disturb this finding. As the preponderance of the evidence during the period on appeal is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. The appeal on the issue of a total disability based on individual unemployability (TDIU) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. (Continued on the next page)   At the November 2020 Board hearing, the Veteran indicated that she does not wish to pursue a claim for TDIU. The Veteran, with her representative present, has withdrawn this issue on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the issue of entitlement to a TDIU and it is dismissed. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Associate 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.