Citation Nr: 21014605 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-25 019 DATE: March 15, 2021 ORDER Entitlement to service connection for bilateral shin splints is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s currently diagnosed bilateral shin splints had its onset during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish entitlement to service connection for bilateral shin splints are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1988 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. This matter was previously before the Board in February 2020, at which time the Board remanded the matter to obtain an adequate VA examination and medical opinion. The Board observes that the Veteran submitted lay evidence after the RO’s adjudication in the June 2020 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See August 2020 lay statement from the Veteran’s fiancée. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). 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 v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for bilateral shin splints Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that he is entitled to service connection for bilateral shin splints. As an initial matter, the Board finds that the Veteran has a current diagnosis of bilateral shin splints. See October 2015 and March 2020 VA “Knee and Lower Leg Conditions” examination reports. Therefore, a current disability is established. Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran had symptoms of soreness, pain, burning, and swelling in both shins during active service. See October 2015 and March 2020 VA “Knee and Lower Leg Conditions” examination reports; January 2016 Notice of Disagreement (NOD); April 2017 VA 27-0820 Report of General Information; May 2017 VA Form 9; January 2020 Board hearing transcript. Notably, during the January 2020 Board hearing, the Veteran testified that when he had to run for physical training, his legs would immediately start burning and that he tried to go to sick call a couple of times but “was made to feel so bad, that – it was like – you’re not a man, you need to man up and you need to just do what you have to do.” The Veteran is competent to report such observable symptoms and the Board finds to reason to doubt the Veteran’s credibility in this regard. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran’s in-service shin symptoms and his currently diagnosed bilateral shin splints. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral shin splints had their onset during active service. First, the Board finds highly probative the Veteran’s consistent reports that his bilateral shin symptoms onset during active service and have continued ever since. See October 2015 and March 2020 VA “Knee and Lower Leg Conditions” examination reports; VA treatment records dated July 2015 to April 2020; January 2016 NOD; April 2017 VA 27-0820 Report of General Information; May 2017 VA Form 9; January 2020 Board hearing transcript. As previously noted, the Veteran is competent to report these observable symptoms and the Board finds no reason to doubt his credibility in this regard. Second, the Board finds it significant that the October 2015 VA examiner indicated that the date of diagnosis of the Veteran’s bilateral shin splints was 1988, or during the Veteran’s active service. Third, the Board finds the March 2020 VA medical opinion inadequate. The March 2020 VA examiner opined that the Veteran’s bilateral shin splints were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning that the Veteran’s service treatment records do not contain a diagnosis of shin splints or complaints of shin symptoms, “[e]ven if the veteran had shin splint[s] during service as he alleges, there is no evidence of continuity of the condition,” the Veteran only endorsed shoulder and neck pain in his first post-service treatment in September 2007, the first documented complaints of shin pain were in 2015, and his “current shin splints is (sic) more likely than not related to the altered gait and lower extremity biomechanics from his chronic hip pain.” On review, the Board finds that the March 2020 VA examiner’s rationale incomplete in light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which holds that a Veteran’s lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. Moreover, the Veteran provided credible testimony during the January 2020 Board hearing that he tried to go to sick call a couple of times due to his shin symptoms but “was made to feel so bad, that – it was like – you’re not a man, you need to man up and you need to just do what you have to do.” As such, the Board affords little to no probative value to the March 2020 VA medical opinion. Fourth, as discussed above, there is no adequate etiology opinion of record regarding the Veteran’s bilateral shin splints. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the overall factual picture such as the length of time and the observable nature of this disability. See Kahana, 24 Vet. App. at 438. (Continued on the next page) Thus, after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral shin splints is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.