Citation Nr: 21029299 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-21 762 DATE: May 13, 2021 ORDER Entitlement to service connection for shin splints, right leg is denied. Entitlement to service connection for shin splints, left leg is denied. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that right leg shin splints began during active service or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's current left leg shin splints began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for shin splints, right leg 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 service connection for shin splints, left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1983 to September 1983 and from December 1990 to March 1991. The record also shows a 12-week period of active duty for training (ACDUTRA) beginning May 24, 1982. In February 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In June 2019, the Board remanded the claims for further development. With regard to the February 2020 examination obtained in connection with the Veteran's claim of service connection for bilateral shin splints, the Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the Veteran's claims for service connection for IBS and a psychiatric condition. The Board finds that additional development is needed based on the information obtained during the last remand. Thus, these claims will be addressed in the remand portion of the decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for shin splints, right leg 2. Entitlement to service connection for shin splints, left leg The Veteran contends her bilateral shin splints were caused by or incurred during service. Specifically, the Veteran testified that she began experiencing shin splints during basic training in 1982 and that her pain has continued since separation. Turning to the relevant evidence of record, the Veteran's service treatment records are silent as to a complaint, diagnosis, or treatment for a right or left leg shin splint. Specifically, during service, the Veteran's lower legs were deemed clinically normal. See May 1982, September 1987, June 1990, March 1991 Reports of Medical Examination. Also, during service, the Veteran consistently denied swollen or painful joints, lameness, and leg cramps. See May 1982, May 1983, September 1987, June 1990, March 1991 Reports of Medical History. Following separation, the Veteran complained of bilateral shin splints. See March 2018, July 2018, August 2018, January 2019 VA treatment records. In a July 2018 VA treatment record, the Veteran was assessed with "shin splints versus radiculopathy." Following her claim for service connection for shin splints, the Veteran was afforded a VA examination in February 2020 to determine the nature and etiology of her shin splints and the relation, if any, to service. At the time of examination, the Veteran reported that she first experienced shin splints during basic training, noting that at such time she was given orthotics. She also reported that following service, she had difficulty with prolonged walking and standing. She also stated that she has flare-ups, uses a cane occasionally, and experiences calve cramps at night. During the examination, the examiner noted a sole diagnosis of bilateral tibialis anterior tendonitis. The examiner opined that it was less likely than not that the Veteran's bilateral shin splints were incurred in or related to service. The examiner reasoned that the Veteran's service treatment records were silent as to complaints, diagnosis, or treatment for shin splints. The examiner also noted that shin splints were documented in the Veteran's post-service records in 2018. The examiner also noted that upon examination, the Veteran did not have a shin splints diagnosis. Noting instead a diagnosis of tibialis anterior pain with negative shin percussion test bilaterally, the examiner stated that the Veteran's complaints were soft tissue in nature that was a combination of tendinitis, radiculopathy component by history, and objective findings. In so finding, the examiner reported that the Veteran's condition was not related to her shin splint complaints made over thirty years prior, but that instead the origin was multifactorial. The examiner specifically identified that the Veteran's history of a lumbar spine injury with disc herniation; radiculopathy; and cancer treated with chemotherapy, radiation, and medication; and obesity were all contributing factors for her lower leg complaints. The examiner also concluded the opinion by noting that the medical evidence did not support a finding that the Veteran's current lower leg complaints were caused by or a result of shin splints that the Veteran claimed during service and that no medical evidence supported such a claim. The Board has also considered the Veteran's reported history of symptomatology related to her shin splints throughout the appeal period. In this regard, she is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, her statements do not rise to a level of competency to offer an opinion as to the etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of the Veteran's claimed shin splint condition requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of her lay assertions is low. On the other hand, the Board finds that the February 2020 VA examiner's opinion nexus opinion to be probative as it was based on the Veteran's medical history and provides the rationale and bases for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner noted the lack of a left or right shin splint diagnosis during service and indicated that a diagnosis of shin splints was not rendered until over three decades post service. Moreover, the examiner assessed that another etiology was the more likely cause of the Veteran's shin splints. Finally, the examiner stated that the medical evidence did not support a finding that the Veteran's current lower leg complaints were caused by or a result of complaints made during service. Finally, there is no other opinion that contradicts the February 2020 opinion. As the preponderance of the evidence is against the claim, service connection for bilateral shin splints must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for irritable bowel syndrome is remanded. The Veteran contends her irritable bowel syndrome is the result of service. She testified that she believed that it stemmed from coming into contact with contaminants on the clothing of casualties who had service in the Southwest Asia theater of operations and were transported to the hospital where she worked as a patient administration specialist. The Veteran also stated that she believed her condition onset in 2008. A June 1982 service treatment record reveals a complaint of abdominal pain. A May 1983 Report of Medical History reveals that the Veteran complained of having or having had frequent indigestion. A March 1991 service treatment records reveals complaints of abdominal pain and loose stools. A July 1993 service treatment record reveals an abnormal abdominal examination. Following separation, a November 2007 private treatment record shows that the Veteran had "diarrhea, predominant IBS." In the Impressions section of the report, the clinician noted that the Veteran had probable irritable bowel syndrome, with alternating diarrhea and constipation with some abdominal cramps. A September 2013 treatment record also shows a diagnosis of IBS. In February 2020, the Veteran was afforded a VA examination to determine the nature and etiology of her IBS and the relation, if any, to service. At the time of examination, the Veteran recalled an initial diagnosis of IBS in 2007 but that she first noticed symptoms in 2005 or 2006. The Veteran reported that her symptoms included bloating, cramping, weight gain, and diarrhea. She also noted persistent abdominal complaints which was triggered by carbohydrates, certain vegetables, and dairy. She reiterated her belief that her IBS was related to proximity to soldiers that processed through Germany, coming out of theater. The examiner opined that it was less likely than not that the Veteran's IBS was incurred in or related to service. The examiner reasoned that there were no injuries, events or symptoms during her service period that were diagnostic for IBS, nor suggestive of an undiagnosed IBS condition. The examiner acknowledged that the Veteran was deemed competent to attest to factual matters of which she had first-hand knowledge, but noted that the Veteran's IBS symptoms onset around 2005 which lacked proximity to service by 14 years and that there were no chronic GI complaints during service. A September 2020 Report of General Information reveals that the examiner explained that the etiology of the IBS was attributed to the Veteran's current food triggers. Based on the above opinion, the Board finds that a remand is necessary to determine whether the Veteran's in-service gastrointestinal problems were early manifestations of her present gastrointestinal disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD)is remanded. As an initial matter, the Board notes that during the hearing, the undersigned VLJ broadened the Veteran's claim to include that of any acquired psychiatric disorder, to include PTSD. During the February 2019 hearing, the Veteran identified that she observed mass casualties, to include infants, in the Patient Administration Department. The Veteran also reported that she was responsible for putting toe tags on infants and that it bothered her a lot because she had a young child. She further testified that she was receiving VA treatment and had been prescribed medication because she was having difficulty sleeping. Following the Board's June 2019 remand, additional VA service treatment records were associated with the Veteran's claims file. Notably, a January 2020 and September 2020 VA treatment record revealed that the Veteran had diagnoses of PTSD and Moderate Recurrent Major Depression. The Veteran has never been afforded a VA examination. Accordingly, on remand, the Veteran must be afforded a VA examination to determine the nature and etiology of her acquired psychiatric disorders, taking into consideration her statements, the evidence of record, and accepted medical principles. In addition, in December 2019, the Veteran was provided with appropriate notice concerning her claim for service connection for PTSD, to specifically include a VA Form 21-0781, utilized to provide details of her stressors. As of yet, the Veteran has not returned the VA Form 21-0781. On remand, she should be provided with another form to provide details of her stressors. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2020 VA examiner regarding the Veteran's service connection claim for IBS. If the February 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner must determine whether is it at least as likely as not (50 percent probability or greater) that any gastrointestinal disability had onset in service, or was otherwise caused or aggravated by her service. In providing this opinion, the examiner is asked to specifically consider whether the Veteran's in-service gastrointestinal symptoms were early manifestations of her present gastrointestinal disability. Also, in providing the requested opinion, the examiner must consider the Veteran's service treatment records, to include those dated in June 1982, May 1983, March 1991, and July 1993 in which she complained of abdominal pain and loose stools. The examiner must also consider the Veteran's credible lay statements of record. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Next, provide the Veteran with a PTSD stressor questionnaire (VA Form 21-0781) for completion. 3. Finally, the Veteran should be scheduled for a VA examination before an appropriate physician to determine the nature and etiology of any acquired psychiatric disorder, to include Major Depression and PTSD. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. (a) With respect to PTSD, the examiner must confirm or rule out a diagnosis of PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine as to whether it is at least as likely as not (50 percent probability or greater) related to a verified in-service stressor, if such a stressor has been found. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. (b) For all other acquired psychiatric disorders diagnosed, to include Major Depression, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran's military service. It is noted that the regulations pertaining to in-service stressors do not apply to psychiatric disabilities other than PTSD. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.