Citation Nr: 21030334 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-33 129 DATE: May 18, 2021 REMANDED 1. Entitlement to a rating in excess of 10 percent for right shin split is remanded. 2. Entitlement to a combined rating in excess of 10 percent (based on a formulation of 10 percent under Diagnostic Code (Code) 5261 and 0 percent under Code 5260) for left shin splint is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1986 to August 1989, and had additional Reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision, which in relevant part denied service connection for right and left flat feet, and granted service connection for right and left shin splints, and assigned initial ratings of 10 percent, each, effective April 20, 2016. [As noted above, the left shin splint disability has been assigned a combined 10 percent rating under Codes 5260 and 5261.] In January 2020, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In February 2020, the Board remanded the matters for additional development. An interim (August 2020) rating decision granted service connection for bilateral pes planus. Accordingly, that matter is no longer before the Board. 1., 2. Entitlement to ratings in excess of 10 percent, each, for right and left shin splints The Board is aware that these matters have been remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded the matters in February 2020 for an examination to ascertain the current severity of the Veteran's bilateral shin splints. The Board specifically directed the examiner to opine whether the related impairment is slight, moderate, moderately severe, or severe disability, and to describe the impact the shin splints have on occupational functioning. The examiner was also directed to review 38 C.F.R. § 4.71a (and 4.73) and offer an opinion as to whether Codes 5260 and 5261 best reflect the Veteran's shin splints disability picture, and if not, identify (with explanation) the Code that provides a more appropriate analogy to the disability picture presented. On July 2020 VA knee and lower leg examination, the examiner diagnosed bilateral shin splints. She noted the Veteran's report that his shin splints flare-ups are "moderate to severe" and are alleviated by ice. However, she did not opine regarding the severity of the disabilities, beyond explaining that there were "No non-verbal signs of pain no wincing/facial wrinkling, etc. during examination." She also did not discuss the impact of the disability on employment, writing, "Mere speculation of bilateral shin pain etiology versus bilateral knee pain etiology." [The Veteran has not established service connection for a knee disability.] Finally, she failed to offer an opinion as to which Code best reflects the Veteran's shin splints disability picture (and why). Accordingly, remand for an adequate examination is necessary. The Board notes that prior to February 7, 2021, there was no specific Code for rating shin splints; the disability was to be rated by analogy. 38 C.F.R. § 4.20. Under the new rating criteria, effective February 7, 2021, Code 5262 pertains to medial tibial stress syndrome (MTSS), or shin splints. The current Code 5262 provides that a 10 percent disability rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment (one or both lower extremities); a 20 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and, a 30 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. The examination to evaluate his service-connected shin splint disabilities should reflect consideration of all applicable diagnostic Codes under both the older and (from their effective date) the revised rating criteria (as directed below). [The Board notes that the old and new (revised) regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the new (revised) criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective earlier than the effective date of the amended criteria. See 38 U.S.C. § 5110(g); VAOPGCPREC 3-00.] The matters are REMANDED for the following: 1. Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his shin splints. 2. Then, arrange for the Veteran to be examined by an appropriate clinician (other than the July 2020 examiner) to assess the current severity of his bilateral shin splints. The entire record (including this Remand), as well as the older and current (revised) criteria for rating knee disabilities and shin splints (under 38 C.F.R. § 4.71a, Codes 5256-5263) should be available to, and reviewed by, the provider. The examiner should respond to the following: (a) Note any fatigue, weakness, difficulty ambulating or with propulsion and/or locomotion due to the shin splints. The examiner should opine whether the related impairment is slight, moderate, moderately severe, or severe disability (explaining the basis for such conclusion). (b) Describe the functional impairment that results from the shin splints and the impact the shin splints have on the Veteran's occupational functioning. (c) (i) Indicate whether the Veteran's shin splints have required treatment for no less than 12 consecutive months, and been unresponsive to either shoe orthotics or other conservative treatment (in one or both lower extremities)? (ii) Indicate whether the Veteran's shin splints have required treatment for no less than 12 consecutive months, and been unresponsive to surgery and either shoe orthotics or other conservative treatment (in either or both lower extremities)? (d) For the period prior to February 7, 2021, review 38 C.F.R. § 4.71a (and 4.73) and offer an opinion as to whether Codes 5260 and 5261 best reflect the Veteran's shin splints disability picture, and if not, identify (with explanation) the Code that provides a more appropriate analogy to the disability picture presented. [The examiner is advised that the new Code 5262 (regarding the specific diagnosis of shin splints) is not for consideration prior to February 7, 2021.] The examiner should include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.