Citation Nr: 21012257 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-14 678 DATE: March 3, 2021 ORDER Service connection for bilateral shin splints is granted. REMANDED Service connection for tonsil disability is remanded. Service connection for bilateral eye disability, to include convergence insufficiency, is remanded. FINDING OF FACT The preponderance of the evidence shows the Veteran’s bilateral shin splints manifested during service. CONCLUSION OF LAW The criteria for service connection for bilateral shin splints are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from January 2010 to June 2010 and July 2011 to July 2012. The Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. The hearing transcript is associated with the claims file. Service connection for bilateral shin splints is granted. The Veteran contends his bilateral shin splints manifested during service. See August 2014 NOD and January 2021 hearing testimony. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The preponderance of the evidence shows a current diagnosis of shin splints. Therefore, the question for the Board is whether the Veteran’s shin splints manifested during service or are related to service. During service, the Veteran was assessed with shin splints on numerous occasions and put on modified duty for shin splints. See February 2010, March 2010, June 2010, September 2010, June 2011, and December 2011 service records. Post-service, an August 2012 VA treatment visit assessed chronic shin splints. An August 2013 VA treatment visit reported continued bilateral leg pain. VA treatment records have not been updated since November 2013. An August 2014 VA examination diagnosed a history of shin splints, resolved. The Veteran reported pains in his legs after running or standing for long periods. The clinician noted the Veteran could avoid symptoms if he avoided these activities. Therefore, the examiner opined the Veteran’s bilateral shin splints were less likely than not incurred in or caused by in-service injury, event, or illness. At the January 2021 Board hearing, the Veteran stated his leg pain started during basic training. He stated his symptoms persisted during Advanced Individual Training (AIT), but he only went to sick call once or twice. He stated he was given shoe inserts and shin sleeves. He stated the military eventually gave him a permanent profile for shin splints. He reported his bilateral leg symptoms have persisted to the present. The Board gives probative weight to the Veteran’s lay statements that his shin splint symptoms manifested during service and have persisted since separation from service. The Veteran is competent to report bilateral leg pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (a lay person is competent to report observable symptomatology of an injury or illness). The statements are consistent with STR showing treatment visits and duty restrictions for shin splints and post-service treatment for continued shin splints. The Board gives low probative weight to the August 2014 VA examination finding his shin splints were resolved. This finding is inconsistent with the examination report noting the Veteran’s bilateral legs hurt after running or standing too long. The Board finds the examiner’s rationale that the Veteran would not have symptoms if he avoided certain activities was insufficient. Accordingly, as the preponderance of the evidence is in favor of the claim, service connection for bilateral shin splints is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for tonsil disability is remanded. 2. Service connection for bilateral eye disability, to include convergence insufficiency, is remanded. Regarding tonsil disability, a January 2014 VA examiner found the Veteran’s tonsillitis was resolved. This finding is inconsistent with the Veteran’s January 2021 hearing testimony that he has continued regular treatment for chronic tonsillitis since service, to include treatment with a private ENT, who diagnosed chronic tonsillitis and rhinitis. These records are not in the claims file. A remand will allow VA to request any relevant outstanding records. Regarding eye disability, a January 2014 VA examiner stated convergence insufficiency is a developmental condition of binocular vision and it is well-documented the Veteran had binocular vision dysfunction before he entered service. The issue has been raised as to whether his bilateral eye disability preexisted active duty service. The Board requests a medical opinion addressing whether the Veteran’s eye disability clearly and unmistakably preexisted service, and if so, whether it clearly and unmistakably was not aggravated in service. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2013 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records related to bilateral eye disability or tonsil disability, to include reported treatment with a private ENT specialist. See January 2021 hearing testimony. Make two requests for the authorized records, unless it is clear that a second request would be futile. 3. After the above record development is completed to the extent possible, schedule a VA examination for tonsil disability with an appropriate clinician. The clinician must: (a.) Identify any tonsil disability found during the appeal period, to include on examination or in the claims file. (b.) For each tonsil disability identified, is it at least as likely as not (50 percent or greater probability) it manifested during service or is related to service? The clinician should consider the January 2021 hearing testimony regarding the onset and chronicity of his tonsil symptoms. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 4. After the above record development is completed to the extent possible, schedule a VA examination for bilateral eye disability with an appropriate clinician. The clinician must: (a.) Identify any eye disability found during the appeal period, to include on examination or in the claims file. (b.) For any eye disability thought to preexist service, is it clear and unmistakable (undebatable) the disability preexisted active duty service? (c.) If an eye disability is found to be congenital, explain whether the disability is a congenital disease or defect. For VA purposes, a congenital disease refers to a condition capable of improving or deteriorating, whereas a congenital defect refers to a condition not capable of improving or deteriorating. If a congenital disease, is it clear and unmistakable (undebatable) the eye disability was not aggravated (non-temporary increase in severity) during active duty service or is it clear and unmistakable (undebatable) any increase was due to the natural progress? If a congenital defect, is it at least as likely as not (50 percent or greater probability) the Veteran incurred a superimposed injury or disease during active duty service that resulted in additional disability of the eye? (d.) If an eye disability clearly and unmistakably preexisted active duty service, but is not congenital, is it clear and unmistakable (undebatable) the disability was not aggravated (non-temporary increase in severity) during active duty service or is it clear and unmistakable (undebatable) that any increase was due to the natural progress? (e.) If an eye disability either did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, is it at least as likely as not (50 percent or greater probability) the disability is related to service? The clinician should consider the October 2014 treating optometrist letter stating that the Veteran’s eye condition worsened due to nearsighted work caused by his job duties while deployed, such as sorting ammunition, operating computer hardware and software, performing ammunition supply stock control and accounting duties, inspecting weapon systems, and performing maintenance on ammunition and explosive components. The clinician should consider the Veteran’s January 2021 hearing testimony that he was not diagnosed with convergence insufficiency prior to service; during service he started having pain in the eye, lightheadedness and dizziness; and post-service he was diagnosed with convergence insufficiency stemming from the same symptomatology he experienced during deployment. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.