Citation Nr: 21032610
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 10-22 680
DATE: May 27, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for shin splints of the right leg is remanded.

Entitlement to a rating in excess of 10 percent for shin splints of the left leg is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from June 1985 to June 1990.

In December 2011, the Board denied the issues of entitlement to a rating in excess of 10 percent for shin splints of the right leg and in excess of 10 percent for shin splints of the left leg.  In June 2014, the Board vacated the December 2011 decision for these issues.  In September 2016, September 2017, September 2018, and May 2020, the Board remanded these issues for additional evidentiary development.  The case has been returned for appellate review.

1. Entitlement to a rating in excess of 10 percent for shin splints of the right leg

2. Entitlement to a rating in excess of 10 percent for shin splints of the left leg

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  85 Fed. Reg. 230 (Nov 30, 2020).  The Veteran's service-connected shin splints of the right and left legs are currently rated under Diagnostic Code 5299-5262 which now provides the following for shin splints:

a 20 percent rating when 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 when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. 

Because the record does not contain sufficient evidence to rate the Veteran's service-connected shin splints of the right and left legs under the new rating criteria, a new examination is warranted. 

3. Entitlement to a TDIU 

In a May 2005 VA rating decision, the issue of entitlement to a TDIU was denied.  Since then, review of the record shows the Veteran reported at the August 2011 Board hearing to having difficulties at work due to his service-connected shin splints of the right and left legs.  The Board finds that the issue of entitlement to a TDIU has been raised by the record in connection with the service-connected shin splints of the right and left legs on appeal.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Additional development is needed, such as asking the Veteran for information about his employment and income.  

While the Board remands the issues of entitlement to a rating in excess of 10 percent for shin splints of the right leg and in excess of 10 percent for shin splints of the left leg for additional evidentiary development, as discussed above, that decision may impact this claim for TDIU.  As such, these issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following actions:

1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU.  Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant education and employment information.

2. Then, schedule the Veteran for an examination with an appropriate clinician to address the current severity of his shin splints of the right and left legs in accordance with VA rating criteria.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

The examiner must provide all findings, including the frequency of treatment and whether or not responsive to surgery and either shoe orthotics or other conservative treatment.

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The examiner must also provide a complete rationale for any opinions provided.

 

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Carter, 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.