Citation Nr: 21011365 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-17 049 DATE: March 1, 2021 ORDER The claim of entitlement to a disability rating of 20 percent for left shin splints is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to a disability rating of 20 percent for right shin splints is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus is denied. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran’s left shin splints have been manifested by pain with an overall moderate impairment of the use of his left leg. 2. Throughout the pendency of the appeal, the Veteran’s right shin splints have been manifested by pain with an overall moderate impairment of the use of his right leg. 3. Throughout the pendency of the appeal, the Veteran’s diabetes mellitus, type II required insulin, an oral hypoglycemic agent, and a restricted diet, but not regulation of his activities. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for left shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5262. 2. The criteria for a 20 percent disability rating for right shin splints have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5262. 3. The criteria for a disability rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from March 1989 to July 1989. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in September 2019, at which time it was remanded for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating 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. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to a disability rate in excess of 10 percent for left shin splint. Please see discussion in paragraph 2. 2. Entitlement to a disability rate in excess of 10 percent for left shin splint. The Veteran’s bilateral shin splints disorder is rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262-5024. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2018). There is no diagnostic code specifically applicable shin splints, so the disorder is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5024, tenosynovitis, which is rated on limitation of motion of the affected part. In this case, the Veteran’s disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262 for impairment of the tibia and fibula. Under Diagnostic Code 5262, tibia and fibula impairment with malunion of a slight knee disability warrants a 10 percent evaluation, moderate knee disability warrants a 20 percent evaluation, and marked knee disability warrants a 30 percent evaluation. Id. A 40 percent evaluation is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Id. Given that the Veteran does not have malunion of the tibia and fibula, the rating criteria in this case is imprecise, but the Board’s analysis focus on whether the disability most nearly approximates slight, moderate, or marked disability, or disability approximating loose motion requiring a brace. The terms “mild,” “moderate” and “severe” 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. During a July 2009 VA examination the Veteran described constant mid tibial area pain. The pain was exacerbated by physical activity and cold weather and was relieved by rest. The pain was aching and sharp and was at a level 10 out of 10. The physical examination revealed tenderness over the lower third of the medial tibia. Examination of the knees revealed tenderness and crepitus. Range of motion testing showed that the Veteran had full flexion and extension of the knees, as well as full dorsiflexion and plantar flexion of the ankles. There was no additional limitation of motion with three repetitions. The examiner noted that an earlier magnetic resonance imaging scan of the bilateral tibia and fibulas showed bilateral compound stress fractures. X-rays of the bilateral tibia and fibulas was within normal limits, with no indication of a malunion to the os calcis or malunion of the astralgus. The examiner noted that the Veteran’s bilateral shin splints affected his usual occupation and his daily activity due to pain with running. The Veteran submitted a June 2010 private examination in support of his claim. The Veteran felt that his shin splints contributed to his current leg and back pain. He reported symptoms of pain and lower leg sensitivity that irritated his ankles, knees, and hips. He rated his pain as an 8 out of 10, with worsening pain with activity and weather changes. His symptoms were relieved with medication, rest, and heat. On physical examination, range of motion testing revealed dorsiflexion to 5 degrees on the left and zero degrees on the right, and 60 degrees of plantar flexion bilaterally. Knee range of motion was to 130 degrees flexion. There was severe tenderness felt at the distal bilateral shin area of the lower legs. The examiner found that the areas of irritation of the ankles, knees, hips, and back were likely caused from previous injury and irritation to the distal legs or shins. A January 2011 VA examination report showed that the Veteran had significant tenderness over the tibias bilaterally and was jumpy when the examiner touched that area. He appeared to be in quite a bit of discomfort. A July 2014 VA ankle examination report noted pain in the ankles and shins when walking for long periods of time. At the April 2019 Board hearing, the Veteran testified that he experienced severe lower extremity pain, which he rated as a level six, with flare-ups rated as a level eight. He stated that he was constantly tripping due to his ankle pain and that his knee sometimes locked up. The Veteran was afforded a VA examination in November 2019. He reported increased pain in the bilateral shins with any ambulation, particularly more than a few blocks. He did not have problems standing unless it was prolonged. Range of motion of the knees and ankles was outside of normal range, but was normal for the Veteran because of his morbid obesity. The physical examination revealed severe pain with palpation, not of the knee but of the shin between the knee and ankle. The examiner noted that his bilateral shin disorder did not affect the joints per se and did not affect the range of motion of the knees or ankles. The examiner found that his bilateral shin splints caused the Veteran to be limited to typical seated light work, with occasional walking on level ground. He was unable to stand/walk no more than 2 hours total in a workday. After a review of all the evidence of record, the Board finds that the Veteran is entitled to a 20 percent rating for his bilateral shin splints. The evidence shows that the Veteran’s shin splint resulted in moderate impairment of the shins. The Veteran reported constant leg pain rated between levels six and ten. Medical providers described the tenderness in the shin area as severe or significant. However, he was able to walk and stand, but not for prolonged periods. The July 2009 VA examiner noted that his shin pain was relieved by rest. The November 2019 VA examiner noted that the Veteran’s shin splints did not affect he range of motion of his knees or ankles. Therefore, resolving doubt in favor of the Veteran, the Board finds that the Veteran’s bilateral shin splints resulted in moderate impairment. The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant’s disability with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected bilateral shin splints, as discussed above, are contemplated by the schedular criteria. There is no indication in the record that the average industrial impairment from the individual disability would be in excess of that contemplated by the assigned rating. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321 (b) is not in order. Accordingly, a 20 percent rating is warranted for the Veteran’s service-connected bilateral shin splints for the entire period on appeal under 38 C.F.R. § § 4.71a, Diagnostic Code 5262. 3. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. The Veteran’s diabetes mellitus is currently rated as 20 percent disabling pursuant to Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent rating. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated warrants a 60 percent rating. Id. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated warrants a 100 rating. Id. The Court has defined the “regulation of activities” as the “avoidance of strenuous occupational and recreational activities,” and concluded that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). Compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2017). Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The Board notes that the rating criteria for Diagnostic Code 7913 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the schedular level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and’ in a statutory provision means that all of the listed conditions must be met). VA treatment records dated in October 2015, noted that the Veteran was encouraged to exercise to lower his a1c. Subsequent VA treatment records showed that his VA providers continued to state that exercise was very important to decreasing insulin resistance. In December 2015, the Veteran presented to the emergency room for complaints of tachycardia, lightheadedness, and chest tightness. His diagnoses were palpitations, chest pain, history of panic attacks, and anxiety. His discharge instructions included recommendations to exercise, pace his activities, and rest between periods of activity. The Veteran was afforded a VA examination in January 2017. The examiner noted that the Veteran’s diabetes mellitus was managed by a restricted diet and that he was prescribed oral hypoglycemic. He reported headaches and decreased focus when his blood sugar was high. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than two times per month. There were no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the prior 12 months. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. He also did not have diabetic peripheral neuropathy, diabetic nephropathy, or diabetic retinopathy. In a January 2018 statement, the Veteran’s representative stated that the Veteran required insulin and a restricted diet to manage his diabetes mellitus. In January 2018, the Veteran argued that the Veteran’s diabetes required regulation of activities and that doctors advised him to pace his activities and to rest between periods of activities. It was noted that the Veteran’s activities were limited due to shin splints. At the April 2019 Board hearing, the Veteran testified that medical professionals suggested that he exercise to control his diabetes. The Veteran underwent a VA examination in November 2019. His treatment included a prescribed oral hypoglycemic agent and insulin. The Veteran’s diabetes mellitus did not require regulation of activities. There were no hospitalizations for ketoacidosis or hypoglycemic reactions. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than two times per month. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a disability rating in excess of 20 percent is not warranted for the Veteran’s diabetes mellitus. The evidence of record demonstrates that the Veteran’s diabetes mellitus requires an oral hypoglycemic agent, insulin, and a restricted diet, but not a regulation of his activities. The Veteran was not hospitalized for ketoacidosis or hypoglycemia during the year prior to the VA examinations. He visited his diabetic care provider less than twice per month for episodes of ketoacidosis or hypoglycemia. There was no progressive unintentional weight loss or strength loss attributable to the diabetes. The Veteran’s complications of his diabetes mellitus includes bilateral upper and lower diabetic peripheral neuropathy and erectile dysfunction, which are rated separately. Accordingly, the evidence is against assigning a disability rating in excess of 20 percent for the Veteran’s diabetes mellitus under Diagnostic Code 7913. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 20 percent for diabetes mellitus must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.