Citation Nr: 21026033 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-18 339 DATE: April 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for the service-connected bilateral pes planus and plantar fasciitis disability is DENIED. On and after December 7, 2020, entitlement to a rating in excess of 50 percent for the service-connected bilateral pes planus and plantar fasciitis disability is DENIED. Entitlement to service connection for a left shin splint disability is DENIED. Entitlement to service connection for a right shin splint disability is DENIED. FINDINGS OF FACT 1. From September 24, 2012 to December 7, 2020, the record reflects that the Veteran has pain associated with the service-connected pes planus and plantar fasciitis. The record does not contain objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. 2. On and after December 7, 2020, the Veteran demonstrated extreme tenderness of the plantar surfaces, which were not improved by orthopedic shoe or appliance, inward bowing of the Tendo Achillis, objective marked deformity, pain on manipulation of feet, and pain on use of feet. 3. The preponderance of the evidence is against a finding that the Veteran’s left shin splint condition was incurred in or aggravated by United States Navy service; additionally, his left shin condition is not proximately due to, or aggravated by, any service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran’s right shin splint condition was incurred in or aggravated by United States Navy service; additionally, his right shin condition is not proximately due to, or aggravated by, any service-connected disability. CONCLUSIONS OF LAW 1. From September 24, 2012 to December 7, 2020, the criteria for a disability rating of in excess of 10 percent for bilateral pes planus and plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5276 (2016). 2. On and after December 7, 2020, the criteria for a disability rating of in excess of 50 percent for bilateral pes planus and plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5276 (2020). 3. The criteria for entitlement to service connection for a left shin disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 4. The criteria for entitlement to service connection for a right shin disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from June 2004 to March 2009. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected bilateral pes planus and plantar fasciitis. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. 1. Entitlement to an initial rating in excess of 10 percent for the service-connected bilateral pes planus and plantar fasciitis disability is denied. In September 2012, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for service connection for a “feet condition,” which arose from long periods of standing. In February 2016, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted service connection for bilateral pes planus and plantar fasciitis, and a noncompensable rating was assigned. In March 2016, the Veteran submitted a VA Form 21-0958, expressing disagreement with the rating assigned by the AOJ. During this appellate period, the Veteran’s bilateral pes planus and plantar fasciitis is rated under 38 U.S.C. § 4.71A, Diagnostic Code (DC) 5276. Under DC 5276, the criteria for a 10 percent rating are moderate impairment with the weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon and pain on manipulation and use of the feet, bilateral or unilateral. The criteria for a 30 percent rating are bilateral severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent evaluation is for application when there is pronounced bilateral disability evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, which is not improved by orthopedic shoes or appliances. The rating schedule does not provide a rating higher than 50 percent rating for pes planus. The Board notes that when the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). As discussed below, the AOJ has already increased the Veteran’s initial disability rating to 10 percent for bilateral pes planus and plantar fasciitis, and the AOJ has increased the disability rating to 50 percent on and after December 7, 2020. In March 2013, the Veteran underwent a VA examination that considered miscellaneous foot disorders. The VA provider reported that, “(the Veteran) states that if he stands for an extended period time, he can have bilateral foot pain. He wears no orthotics. He notes no swelling. He describes pain in the arch which is worse at the end of the day following prolonged standing.” The VA provider did not note deformity of the feet. In October 2013, a note was generated at the VA Nebraska-Western Iowa Health Care System (NWIHS). Therein, a VA provider reported that night splints were supplied for the Veteran’s bilateral plantar fasciitis. In February 2016, the Veteran underwent a VA examination that considered the severity of the service-connected pes planus and plantar fasciitis disability. At that time, the Veteran reported pain on the soles of both feet with prolonged standing. The VA examiner noted that the Veteran’s weight-bearing line did not fall over or medial to the great toe, bilaterally. The VA examiner did not report “inward” bowing of the Achilles tendon, pain with manipulation of the feet, objective evidence of marked deformity, characteristic callosities, or any indication of swelling on use. The Veteran reported that orthotics did not provide relief. However, the VA examiner noted that orthotics provided some relief to the Veteran’s symptoms, bilaterally. In March 2016, the Veteran submitted a VA Form 21-0958. Therein, the Veteran filed his notice of disagreement (NOD) with the then current noncompensable disability rating, which was assigned by the AOJ for bilateral pes planus and plantar fasciitis. The Veteran positing that, “I continue to have daily foot pain in both feet. The pain is there on a daily basis. The orthotics I have received from VA are no benefit whatsoever. On most days my pain manifests midway through the day and is at its peak by the end of the day. My VA Examination was at 0800 in the morning and I had not been on my feet for any significant amount of time. As stated to the examiner, physical therapy was the only thing that seemed to relieve my pain.” In April 2016, the Veteran’s treatment records from the VA NWIHS, Lincoln Division, were associated with the electronic claims file. Therein, in September 2013, a VA provider noted that, “(h)e states his foot pain was worse from 2006 through 2009. His pain somewhat improved once he was here. However, he still continues to have persisting pain. He has a difficult time finding shoes that fit properly. He describes the pain mainly in the arch area, top and bottom of both feet.” In December 2013, a VA provider noted that, “(t)he patient RTC for his foot pain. He is currently wearing insoles, stretching, going to physical therapy for the foot and knee pain. He states he saw ortho for his knee and foot pain, had a night splint ordered, but has yet to receive it. He is still frustrated with his pain. He is having pain in the right arch, but is better.” In April 2016, the AOJ issued a rating decision, which increased the initial disability rating for the Veteran’s bilateral pes planus and plantar fasciitis to 10 percent. The AOJ based the 10 percent disability rating on pain during manipulation of feet, mild symptoms, and symptoms partially relieved by arch support. In May 2020, the Veteran’s treatment notations from Columbus Physical Therapy were associated with the claims file. After review, the Board observes that a therapist reported that the Veteran endured increased plantar fascia pain with walking in November 2018. After review and consideration of the claims file, the Board concludes that the currently assigned, initial 10-percent rating is warranted between September 24, 2012 and December 7, 2020. The evidence, to include the Veteran’s competent and credible statements, does not satisfy the criteria for a rating in excess of 10 percent for the service-connected pes planus and plantar fasciitis during this claim period. See 38 C.F.R.§ 4.71a, DC 5276. The Board notes that the Veteran has pain associated with use and manipulation of the service-connected bilateral pes planus and plantar fasciitis. However, the record does not contain objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, which would be necessary for an increased rating during this claim period. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for a rating in excess of 10 percent for the service-connected pes planus and plantar fasciitis between September 24, 2012 and December 7, 2020. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for an initial rating in excess of 10 percent for the service-connected pes planus and plantar fasciitis must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. On and after December 7, 2020, entitlement to a rating in excess of 50 percent for the service-connected bilateral pes planus and plantar fasciitis disability is denied. In October 2018, the Board addressed the Veteran’s claim for an initial rating in excess of 10 percent for the service-connected bilateral pes planus and plantar fasciitis. At that time, the Board found that the Veteran’s service-connected bilateral pes planus and plantar fasciitis were no more than moderate in degree and had been manifested by pain on manipulation. The Board concluded that the criteria had not been satisfied for an initial rating in excess of 10 percent. In October 2019, the Court of Appeals for Veterans’ Claims (Court) issued a Joint Motion for Partial Remand (JMPR). Therein, the Court found that the February 2016 VA examination was inadequate because the examiner did not opine on the severity, frequency, and duration of the Veteran’s flare-ups. The Court also found that the VA examination was internally inconsistent, because of the varied reports on the relief provided by orthotics. In April 2020, the Board addressed whether the Veteran was entitled an initial disability rating in excess of 10 percent for bilateral pes planus and plantar fasciitis. In light of the Court’s JMPR, the Board remanded the Veteran’s claim for a new VA examination. Again, the Veteran’s bilateral pes planus is currently rated under 38 U.S.C. § 4.71A, DC 5276. Under DC 5276, the criteria for a 50 percent evaluation is for application when there is pronounced bilateral disability evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, which is not improved by orthopedic shoes or appliances. The rating schedule does not provide a rating higher than 50 percent rating for pes planus. The Board notes that, effective February 7, 2021, the VA regulations that address the severity of service-connected foot disabilities have been revised. In addition to the ratings available under DC 5276, a Veteran’s foot disability will also be considered under 38 C.F.R.§ 4.71a, DC 5269 (2021). Under DC 5269, the following criteria are applicable for rating a plantar fasciitis disability: Unilateral or bilateral plantar fasciitis with non-surgical or surgical treatment relief is rated as 10 percent disabling. No unilateral relief from both non-surgical and surgical treatment is 20 percent disabling. No bilateral relief from both non-surgical and surgical treatment is rated as 30 percent disabling. Note (1): With actual loss of use of the foot, rate 40 percent. Note (2): If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. On December 7, 2020, the Veteran underwent a VA examination that addressed the severity of the service-connected bilateral pes planus and plantar fasciitis. The Veteran reported that he wore custom orthotic insoles, and he replaced his shoes every 6 months. The Veteran reported that he was in pain as soon as his feet hit the floor. The Veteran reported excess fatigability and pain at rest while sitting at work. The VA examiner reported pain with use and manipulation of the feet. The VA examiner reported that there was no indication of swelling with use. The VA examiner did not report characteristic callosities. Bilaterally, the VA examiner reported extreme tenderness of the plantar surfaces, marked deformity, and “inward” bowing of the Achille’s tendon. The VA examiner reported that the weight-bearing line did not fall over or medial to the great toe. The VA examiner noted that the Veteran had not undergone a foot surgery. The VA examiner noted excess fatigability, pain on weight bearing and non-weight bearing, pain on movement, disturbance of locomotion, and lack of endurance. During the Veteran’s reported flare-ups, the VA examiner noted a loss of endurance for activity, pain while trying to run with son or walk with wife, and feet get tired quickly. In December 2020, the AOJ issued a rating decision. Therein, the AOJ increased the rating for the Veteran’s service-connected bilateral pes planus and plantar fasciitis to 50 percent, effective December 7, 2020. The AOJ based the increased rating on extreme tenderness of the plantar surfaces, which were not improved by orthopedic shoe or appliance. The AOJ noted additional symptoms of inward bowing of the Tendo Achillis, objective marked deformity, pain on manipulation of feet, and pain on use of feet. The AOJ correctly noted that 50 percent was the highest schedular rating under 38 U.S.C. § 4.71A, DC 5276. In March 2021, the Veteran’s representative submitted a Written Brief Presentation. After review, the Board observes that the representative did not offer any argument for ratings in excess of 10 percent and 50 percent for the bilateral pes planus and plantar fasciitis, during the respective claim periods. During the claim period, the Board observes that the Veteran’s bilateral pes planus is rated at the maximum 50 percent under DC 5276. If the Board were to assign a separate 10-percent rating under DC 5269 for plantar fasciitis, it would constitute pyramiding. That is, the symptoms of the service-connected pes planus and plantar fasciitis overlap under Diagnostic Codes 5276 and 5269. The manifestations of bilateral pes planus and plantar fasciitis are not shown to be separate and distinct in this case. Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Thus, a separate, additional evaluation for plantar fasciitis is not warranted under DC 5269. After review and consideration of the claims file, the Board concludes that the currently assigned 50 percent rating is warranted on and after December 7, 2020. The Board notes that this is highest schedular rating available for the Veteran’s service-connected bilateral pes planus and plantar fasciitis. See id. The Board again notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to service connection for a left and right shin splint disability, to include as secondary to a service-connected bilateral knee, ankle, and/or foot disability, is denied. In April 2012, the Veteran submitted VA Forms 21-526b and 21-4138. Therein, the Veteran initiated claims for service connection for bilateral shin conditions. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court’s 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA’s practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran’s claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In April 2009, February and March 2012, and November 2013, the Veteran’s service treatment records (STRs) were associated with the claims file. After review, the Board notes that the Veteran was not seen and/or treated for shin splints during active duty in the United States Navy. In October 2012, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured ankle conditions. At that time, the VA provider indicated that the Veteran did not currently have, nor had he ever had, “shin splints”, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (Os calcis) or talus (astragalus), and/or a talectomy (astragalectomy). During a knee and lower leg VA examination on the same date, the VA provider reported an undated diagnosis for “bilateral patellar lateral tracking, bilateral shin splints.” Ultimately, the VA provider opined that, “bilateral shins . . . are less likely as not due to any events in the service. Reasoning is that he was either not diagnosed with any chronic condition, never seen in the service, or only seen once for these conditions without any continued care in the interim to show that conditions have continued to be chronic issues since 2009.” In November 2015, the Board addressed the Veteran’s claim for service connection for a bilateral shin disorder. At that time, the Board concluded that the Veteran’s claims were inextricable intertwined with a pending claim for a bilateral foot disorder. In February 2016, the Veteran underwent a VA examination that considered the current severity of a service-connected pes planus disability. Relevant to this Board analysis, the VA provider opined that, “‘it is less likely than not’ the bilateral knee, ankle, and shin splints are related to his feet. Rationale is there is no demonstrable functional deficit with his feet on exam today nor was there a gait alteration noted on exam today when walking the Veteran back to & from the waiting room to the exam room.” In October 2018, the Board considered the Veteran’s claim for service connection for bilateral shin disabilities. At that time, the Board remanded the Veteran’s claims to the AOJ for additional development. The Board relayed that, “(i)n February 2016, the VA provider was supplied VA Form 21-2507a. Therein, the VA provider was directed, ‘if the Veteran has a diagnosed foot disorder . . .is it at least as likely as not that his claimed bilateral knee, bilateral ankle, and bilateral shin splints are proximately caused or aggravated by his bilateral foot disorder.’ The VA provider failed to appropriately address this query. Despite noting that the Veteran endured flare-ups, the VA provider did not address whether pes planus flare-ups impacted the Veteran’s bilateral shins. Instead, the VA provider supported his negative opinion with objective observations made during a non-flare-up period, which did not answer the query in the VA Form 21-2507a. Consequently, a remand is necessary to identify whether the Veteran’s service-connected pes planus aggravates his bilateral shins.” In May 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured knee and lower leg conditions. At that time, the VA provider found that the Veteran did not demonstrate recurrent patellar dislocation, ‘shin splints’ (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA provider remarked that, “there is no evidence for right or left shin disorder on exam today.” In July 2019, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “it is my contention that these (shin) conditions exist and had their onset during my active duty military service. On the date of my VA Compensation Examination to address my Knees, Ankles and Shins, the doctor was very thorough with regards to examining my knee and ankle conditions. The examiner, however, did not examine my shins or ask me any questions whatsoever regarding my shin conditions. As stated previously, it is my belief and my contention that my bilateral shin condition for which I have daily pain in both of my shins had its onset in service and has been persistent ever since. My bilateral Shin Splints had been diagnosed in a C&P exam from 10/20/2012.” In November 2019, the Board considered the Veteran’s claims for service connection for bilateral shin disabilities. The Board remanded the claims to the AOJ for additional development. The Board relayed that, “the May 2019 VA provider concluded that the Veteran did not have a shin disability on examination. However, there is some ambiguity in the October 2012 examination as to whether he has had a shin splint disability during the course of the appeal. While the October 2012 Ankle DBQ indicates that the Veteran did not have shin splints, the Knee & Lower Leg DBQ includes a diagnosis of shin splints. It is unclear if the examiner is saying the Veteran had a history of shin splints or had a current diagnosis at the time of the October 2012 examination. Because of the ambiguity created by the October 2012 VA examination report(s), the Board concludes that an addendum report is necessary before a decision may be rendered for the Veteran’s entitlement claims for service connection for left and right shin disorders.” In February 2020, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed that, “I am submitting a medical article for the Mayo Clinic in regard to shin splints. The article states that risk factors for shin splints include. . . You’re a runner, especially one beginning a running program; You suddenly increase the duration, frequency or intensity of exercise; You run on uneven terrain, such as hills, or hard surfaces, such as concrete; You’re in military training; You have flat feet or high arches.” The Veteran also relayed that, “(a)s I have stated before my shin splints had its onset during my active duty military service. My shin splints could also be considered secondary to my service-connected Bilateral Flatfoot/ Plantar Fasciitis.” In February 2020, the Veteran underwent a VA examination that considered the nature and etiology of knee and lower leg conditions. The VA examiner noted a January 2012 diagnosis for bilateral shin splints. The VA examiner reported the following medical history: “(o)nset Date: Around 2006 he was working in law enforcement and security in Italy and had bilateral shin pain. Details of Onset: Veterans work required him to stand 12-hour watches and after that he had mandatory physical training which required him to run for many miles. Veteran had to wear heavy gears which includes M 16 rifle, 9 mm pistol, ammunition, radio, baton, heavy flak jacket, bulky helmet, gas mask strapped to his thigh. Veteran had to run on concrete roads for miles. Course since Onset: Veteran was stationed there for about 3 years. He had pain on bilateral shins for the 3 years he was there and continued to have the pain. Veteran has anxiety issues when he goes to their provider/physician. He did not seek treatment. Veteran claims he continues to have pain on bilateral shin daily. Veteran has had physical therapy for bilateral shin splints. Current Symptoms: Pain on bilateral shin daily.” The VA examiner remarked that, “Veteran has tenderness on anterior aspect of lower leg below knee and above his ankle.” The VA examiner opined that the left and right shin splints were less likely as not (less than 50 percent probability) incurred in or caused by in-service injury, event or illness. The VA examiner supplied the following rationale: “I do not see any documentation or treatment for left (or right) shin splints during service to 2012.” The VA examiner also remarked that: “a) Veteran had a diagnosis of shin splints in 2012; b) There was no complaints of bilateral shin splints during service; c) The veteran did have bilateral shin splints on 10/12 the VA exam. It was not incurred by veteran service in Navy; and d) Veteran does have a current diagnosis of bilateral shin splints as of 2012.” In August 2020, the Board addressed the Veteran’s claims for bilateral shin splint disabilities. At that time, the Board remanded the claims to the AOJ for additional development. The Board directed the AOJ to obtain an addendum VA examination report that addressed secondary service connection for the Veteran’s bilateral ankle, knee and foot disabilities. In October 2020, an addendum VA examination report was associated with the claims file. Therein, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s current bilateral shin splints were incurred in, or caused by, the claimed in-service injury, event, or illness. The VA examiner also opine that it was less likely than not (less than 50 percent probability) that the Veteran’s current bilateral shin splints were proximately due to or the result of the Veteran’s service-connected disabilities. The VA examiner supplied the following rationale: “(t)here is no evidence of bilateral shin splints during service or at separation. There is no care proximate to service, and the first indication of shin splints arises in October 2012. Therefore, it is less likely than not that the veteran's bilateral shin splints are due to or incurred in military service, including the veteran's duties/MOS. It is also less likely than not that the veteran's shin splints are due any other service-connected conditions, including bilateral ankle knee and foot conditions (pes planus and plantar fasciitis). It is also less likely than not that the veteran's shin splints have been aggravated beyond the natural course due to the same conditions. The following represents accepted knowledge and practice, supported by standard texts such as Wheeless. Interestingly, the veteran cited the same treatise from the Mayo Clinic. The information is correct, but the veteran's interpretation is too broad and general. A condition of one joint does not cause a condition of another joint, or the shins in this case. This includes gait accommodation for one or many joint conditions. Shin splints are generally considered a periosteal and musculo-tendinous reaction along the shin, due to activity. As such, there is no physiologic or anatomic mechanism by which the service-connected conditions could cause or aggravate the veteran's shin splints. If anything, the veteran's other conditions would limit the activities resulting in a flare. It is also noted on the 2020 DBQ that there is no effect of ROM on the knees or ankles. This further separates the various conditions. Pes planus and pes cavus are both considered risk factors for the development of shin splints. Risk factors do not cause the condition. The veteran's activities post service more likely than not cause the veterans shin splints. As noted, this rationale applies to aggravation as well. Any impact of the veteran's other conditions would be expected to limit the veteran's activities that would be causative of a flare. Independently, they would not cause aggravation. Furthermore, there is no evidence of aggravation beyond the natural course of the veteran's shin splints, due to any cause. Therefore, it is less likely than not that the veteran's shin splints are due to the veteran's service-connected conditions, including those delineated above. It is also less likely than not that the veteran's shin splints have been aggravated beyond the natural course due to any cause, including the veteran's service-connected conditions. The natural course of shin splints varies from only episodic flares to a chronic condition.” The Veteran currently maintains a diagnosis for bilateral shin splints. Consequently, the first requisite element for direct and secondary service connection has been substantiated. See Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, the Veteran’s STRs do not document an in-service incurrence of shin splints. Moreover, after review, the Board notes that the record does not contain a competently identified nexus between the current shin splint disabilities and the Veteran’s service in the United States Navy. Consequently, the preponderance of the evidence stands against the Veteran’s claim for direct service connection for bilateral ship splints. See Hickson, 12 Vet. App. at 253. The Board observes that the Veteran is service connected for bilateral knee, ankle, and foot disabilities. Consequently, the second requisite element for secondary service connection has been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, after multiple Board remands and multiple VA examination reports, the preponderance of the evidence does not reflect that there is a competently identified nexus between the Veteran’s current bilateral shin splints and a service-connected disability. Consequently, the final requisite element for secondary service connection has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s direct and secondary claims for service connection for a bilateral shin splint disability. Since the preponderance of the evidence is against these claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claims for service connection for bilateral shin splints must be denied because the preponderance of the evidence weighs against his claims. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.