Citation Nr: 21013555 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-09 413 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral shin splints, to include as secondary to the service-connected left ankle and/or left knee disabilities, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral shin splints began during active service or are otherwise related to an in-service injury or disease. 2. The Veteran’s service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment during the appeal period. The Veteran was fully employed until June 2020. The Veteran is in receipt of a combined total schedular rating from May 14, 2020. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral shin splints, to include as secondary to the service-connected left ankle and/or left knee disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 2002 to July 2006. The Veteran’s service connection claim for shin splints was previously remanded by the Board in December 2015, November 2016 and May 2018. In April 2020, the Board remanded both his service connection claim for shin splits and his TDIU claim for additional development. Following completion of development of these issues, these issues have been returned to the Board. The Board finds that there has been substantial compliance with the April 2020 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for bilateral shin splints, to include as secondary to the service-connected left ankle and/or left knee disabilities, is denied. The Veteran contends that he has current and continuous issues with his shins bilaterally due to his service-connected disabilities, to include his left ankle and/or left knee disabilities. Alternatively, the Veteran contends that his shin splints are directly related to his military service. At the outset, the Board notes that the Veteran has a diagnosis of bilateral shin splints. Therefore, the first element of service connection, a current disability, has been met. Second, as to secondary service connection, the Veteran is service-connected left ankle and/or left knee disabilities. With respect to direct service connection, and an in-service incurrence, the Veteran reported that his shin splints had a gradual onset, and he was seen and treated for shin splints during boot camp. See September 2019 Disability Benefits Questionnaire. He reported he was prescribed Ibuprofen and given a profile for 1 to 2 days. Id. Since that time, the Veteran believes his shin splints have progressively worsened. Id. Indeed, the Veteran’s service treatment records (STRs) note that the Veteran had a case of shin splints in service in September 2002. Given the Veteran’s competent and credible lay statements and a notation of shin splints in the Veteran’s STRs, the Board finds that the second element of service connection, an in-service incurrence, has been met for consideration of service connection on a direct basis. Therefore, the only remaining issue for both theories of entitlement is whether a nexus may be established on either a direct or secondary basis. In June 2010, a VA examiner noted that the Veteran had left middle third tibia pain, but noted that the etiology of the pain could not be determined without speculation. He indicated that a radiography would be recommended to exclude a bone disease. As this opinion was inconclusive, the Board does not find the June 2010 opinion adequate or probative as to a nexus. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link between chest trauma and restrictive lung disease was “too general and inconclusive” to support an award of service connection). In April 2016, a VA examiner opined that it is less likely than not that the Veteran currently has shin splints or a tibia/fibula disorder that is related to active duty service, including the 2002 active duty complaint related to shin splints. In July 2017, a VA examiner opined that the Veteran’s shin splints and his left ankle disability were not “medically related.” The examiner reasoned that shin splints were noted to be a separate entity from the service-connected left ankle disability. The examiner reasoned that the medical literature also did not support a medical relationship. Further, the examiner indicated that STRs indicated that the Veteran’s shin splints occurred in September 2002, which was prior to the onset of the left ankle strain, which occurred in 2005-2006. As the shin splints preceded the ankle strain, the examiner opined that a secondary relationship did not exist. In November 2017, a VA examiner opined that it is less likely than not that the Veteran’s claim of shin splints incurred in, or is related to, active duty military service, including the 2002 active duty complaint related to shin splints. The September 2019 VA examiner opined that the Veteran’s shin splints are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s STRs are silent for greater than 15 years for any shin splint complaints, treatment, and/or diagnosis. The examiner therefore concluded that there is no evidence of chronicity of care. The examiner then concluded that a nexus has not been established. The September 2019 VA examiner also concluded that the Veteran’s bilateral shin splints were not at least as likely as not aggravated beyond the natural progression by a service-connected condition. The examiner reasoned that, while a shin splint condition was noted in service, the shin splint condition was acute only. The examiner also concluded that the Veteran’s bilateral shin splints are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected left ankle and/or left knee disabilities. The examiner reasoned that the Veteran’s STRs are silent for greater than 15 years for any shin splint complaints, treatment, and/or diagnosis. The examiner therefore concluded that there is no evidence of chronicity of care. The examiner then concluded that a nexus has not been established. In September 2020, in four separate opinions concerning the Veteran’s bilateral shin splints, a VA examiner concluded that the Veteran’s bilateral shin splints are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner also concluded that the Veteran’s bilateral shin splints are not at least as likely as not aggravated beyond its naturally progression by a service-connected condition. The September 2020 VA examiner reasoned that shin splints are essentially a pain condition on the mid-anterior lower leg. The classic scenario of shin splits is found in runners, given the stress with running at this location. It typically gets worse after prolonged running (or other intense exercise that puts weight on the lower legs) and gets better with rest. The examiner noted that any other condition that reduces the amount of running or exercise that a person can do, such as the Veteran’s service-connected left knee strain or left ankle degenerative joint disease status post fracture and surgery, would actually improve shin splints. The examiner noted that it is counterintuitive to what shin splints are to think that the Veteran’s service-connected left knee strain or left ankle degenerative joint disease status post fracture and surgery would cause shin splints or aggravate it. The examiner then concluded that it is less likely than not that the Veteran’s shin splints are proximately due to his service-connected left ankle and/or left knee disabilities. Taken together, the July 2017, September 2019, and September 2020 VA opinions are the most probative evidence regarding whether the Veteran’s shin splints are related to his active service or his service-connected ankle and knee disabilities, as well as whether the shin splints are aggravated by his ankle and knee disabilities. These opinions establish that the Veteran’s bilateral shin splints are not at least as likely as not related to an in-service injury or event, secondary to the Veteran’s service-connected left ankle and/or left knee disabilities or aggravated by these disabilities. The examiners’ combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions, rationales and the opinions are supported by evidence and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiners noted that his treatment for shin splints in service was acute, and not chronic, and that there is no medical evidence to link his knee and ankle to his shin splints, in fact, reduced activity because of these conditions would improve the shin splints not aggravate them. The Board recognizes that the Veteran believes his shin splints are directly related to his military service or proximately due to or aggravated by his service-connected disabilities. While the Veteran in this case is competent to report observable symptoms such as pain in his shins, he is not competent to provide a nexus opinion regarding the cause of that pain. This issue is medically complex and cannot be determined based solely on observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, the Board gives more probative weight to the VA opinions. Lacking a nexus, the Board concludes that, while the Veteran has a current disability of bilateral shin splints, the preponderance of the evidence is against finding that the Veteran’s bilateral shin splints are directly due to service or proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Accordingly, service connection for shin splits is denied. 2. Entitlement to a TDIU is denied. As noted in April 2020, the evidence of record appears to suggest that the Veteran is unable to work as a result of his service-connected disabilities. As such, the issue of entitlement to a TDIU has been reasonably raised by the record in connection with the Veteran’s previous increased rating claim for residuals of a left great toe bunionectomy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. The Veteran is in receipt of a 70 percent rating for posttraumatic stress disorder (PTSD) from March 3, 3014; a 20 percent rating until May 14, 2020 and a 40 percent rating thereafter for lumbosacral strain with IVDS; separate 20 percent ratings for bilateral lower extremity radiculopathy from November 20, 2019; a 10 percent rating for residuals of bunionectomy, left great toe from July 15, 2006; a 10 percent rating for left knee strain from September 17, 2009; a 10 percent rating for left ankle degenerative joint disease (DJD) status post fracture from July 15, 2006 (and a temporary 100 percent rating for left ankle DJD from March 21, 2019 to September 1, 2019); a 10 percent rating with varied temporary 100 percent ratings for right great toe hallux valgus and hallux rigidus from January 27, 2009; a 10 percent rating a for right hip strain from November 20, 2019 (and a noncompensable rating from February 12, 2020 to May 14, 2020); a noncompensable rating from August 7, 2018 to May 14, 2020 and a 10 percent rating thereafter for left hip strain with limitation of flexion. The Veteran is also in receipt of noncompensable ratings for a scar, residual of bunionectomy left great toe; left hand arthralgia; scar, right hand status post internal fixation surgery; surgical scar, right great toe; residual scar left ankle; painful surgical scar, right great toe; bilateral hip strain with limitation of extension; and bilateral hip strain with limitation of rotation. The Veteran’s combined disability ratings are as follows: 80 percent from March 3, 2014 to March 16, 2018, 100 percent from March 16, 2018,to May 1, 2018; 80 percent from May 1, 2018 to August 7, 2018; 90 percent from August 7, 2019 to March 21, 2019; 100 percent from March 21, 2019, to September 1, 2019; 90 percent from September 1, 2019, to November 20, 2019; 100 percent from November 20, 2019 to May 1, 2020; 90 percent from May 1, 2020 to May 14, 2020; 100 percent from May 14, 2020. As the Veteran has a combined disability rating greater than 70 percent, and one disability ratable at 60 percent or more, his PTSD, the Veteran meets the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). In the instant case, in his May 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he first became too disabled to work in March 2019. The Veteran also reported that he was last employed in May 2020 as a surgical technician. However, a May 2020 letter from the Veteran’s employer noted the Veteran was removed from employment in June 2020. Given that the record indicates that the Veteran was fully employed prior to March 2019, and the Veteran does not contend that he was unemployable prior to this time, the Board finds that a TDIU is not appropriate prior to March 2019. Turning to the record as of March 2019, the record shows that since March 2019 the Veteran had a 100 percent combined schedular rating for the entire period except from September 1, 2019 to November 20, 2019, and from May 1, 2020 to May 14, 2020, when the Veteran’s combined rating was 90 percent. In considering whether he was unemployable during these periods, the Board notes that the Veteran stated he was employed until May 2020, and the Veteran’s employer stated that he was employed until June 2020. Thus, the Board finds that prior to June 2020, the evidence of record establishes that the Veteran maintained gainful employment, despite his disabilities. The Veteran has advanced no argument that his employment is sheltered or protected in any way, and there is no evidence to that effect in the record. Accordingly, there is no basis for assignment of a TDIU in this case, and the appeal for entitlement to at TDIU must be denied. The Board notes that although the Veteran has been in receipt of 100 percent ratings throughout most of the period since March 2019, when he asserts that his disabilities rendered him unemployable, a 100 percent disability rating does not necessarily render the issue of TDIU moot for these periods. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94. Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, for all periods in which the Veteran was in receipt of a 100 percent combined schedular rating, he was also in receipt of special monthly compensation under 38 U.S.C. 1114(s). Thus, Bradley and Buie are not applicable as there are no additional benefits to award during these periods and his claim for TDIU during these periods is moot. Further, as noted, for the periods after March 2019 where he was in receipt of a 90 percent combined rating, the Board has found that TDIU is not warranted given his full-time employment. Accordingly, the Veteran’s TDIU claim is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.