Citation Nr: 21041892 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-02 428 DATE: July 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for right ankle sprain with shin splints is denied. Entitlement to an increased rating of 10 percent for left shin splints is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's right ankle sprain with shin splints has been manifested by no worse than painful motion productive of moderate disability. 2. For the entirety of the appeal period, the Veteran's left shin splints are characterized by pain with prolonged activity, without limitation of motion, loss of strength, or joint instability, indicative of no more than slight impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right ankle sprain with shin splints are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5271. 2. The criteria for entitlement to a 10 percent disability rating for left shin splints are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2004 to April 2007. The Board of Veterans' Appeals (Board) remanded this case to the Agency of Original Jurisdiction (AOJ) in April 2019 for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, and in a July 2020 rating decision, the AOJ granted a 10 percent rating effective January 12, 2011 for the Veteran's right ankle sprain with shin splints. The matter remains on appeal and has been characterized accordingly. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a higher disability rating for right ankle sprain with shin splints and entitlement to a compensable disability rating for left shin splints The Veteran contends that she is entitled to higher ratings for her left shin splints and right ankle sprain with shin splints. The Veteran was granted service connection for bilateral shin splints and for a right ankle sprain in an August 2007 rating decision and assigned an initial noncompensable rating, effective April 13, 2007. In January 2011, the Veteran claimed that her bilateral shin splints and right ankle sprain worsened and warranted a higher disability rating. In a July 2020 rating decision, the AOJ granted an increased rating of 10 percent for right ankle sprain with shin splints under Diagnostic Code 5271, effective January 12, 2011, the date of the claim. 38 C.F.R. § 4.71a. The Veteran's left shin splints is rated at a noncompensable (0 percent) disability rating under Diagnostic Codes 5299-5262. 38 C.F.R. § 4.71a. Prior to February 7, 2021, there was no diagnostic code specifically applicable to shin splints. Instead, the disability was rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be 99 for all unlisted conditions, in this case 5299 for miscellaneous injury. See 38 C.F.R. § 4.27. Prior to February 7, 2021, under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Under the new rating criteria, effective February 7, 2021, Diagnostic Code 5262 pertains to medial tibial stress syndrome (MTSS), or shin splints. The current Diagnostic 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 disability 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, 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. Notably, effective February 7, 2021, there was a revision in the rating schedule for Diagnostic Code 5271, which address limitation of motion of the ankle. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). Prior to February 7, 2021, DC 5271 provided a 10 percent rating is warranted for moderately limited motion of the ankle; and a 20 percent rating is warranted for markedly limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Separate compensable ratings may also be awarded if the ankle is ankylosed, has malunion of the os calcis or astragalus, or has had an astragalectomy. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. Prior to February 7, 2021 the terms "moderate" and "marked" in the criteria under Diagnostic Code 5271 were not defined in the VA Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. From February 7, 2021, Diagnostic Code 5271 provides that a 10 percent rating is assigned for moderate limitation (less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion), and a 20 percent rating is assigned for marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Full range of motion of the ankle joint consists of 20 degrees dorsiflexion and 45 degrees plantar flexion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Generally, when the law changes during the pendency of a claim, the law most favorable to the claimant must be applied from the effective date of the change under either the former version or the revised version. McGrath v. Gober, 14 Vet. App. 28, 34 (2000); see also Ervin v. Shinseki, 24 Vet. App. 318, 323 (2011), opinion corrected, 25 Vet. App. 178 (2012). As such, Board will consider the Veteran's evaluation based on both the prior and the revised law from the effective date of the change in law, and under the old or former criteria prior to that date. In April 2011, the Veteran underwent a VA examination. She reported bilateral shin splints with onset during active service. She reported constant shin pain that started in the feet/ankle and radiated to the shin. She reported flare-ups of pain with prolonged walking and standing. She reported that the course since onset was stable and that she treated her pain with over-the-counter medication and stretching. Assistive devices were not needed for ambulation and the condition did not affect motion of the joints. Gait was normal. There was pain to palpitation of the bilateral tibias in the medial aspects. Upon examination, the Veteran's right ankle joint demonstrated pain, stiffness, and swelling. She did not experience deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, locking, or effusions. She noted moderate weekly flare-ups of right ankle pain. Range of motion of her bilateral ankles was normal with no limitation. The Veteran reported that her right ankle disability severely limited her ability to perform chores and moderately impacted her ability to exercise and play sports. In August 2014, the Veteran underwent a VA examination for ankle conditions. She was diagnosed with a right lateral collateral ligament sprain, chronic/recurring. She was not diagnosed with a left lower extremity condition. The Veteran reported constant right ankle pain and an inability to wear shoes that irritated her right ankle. She did not report flares, or having any functional loss or functional impairment of her right ankle. Range of motion of her bilateral ankles was normal with no limitation. There was no change in range of motion after repetitive testing. No range of motion movements were painful on active, passive, and/or repetitive-use testing. Right ankle pain was noted upon weight-bearing or non-weight-bearing; however, the pain was not substantial enough to cause alteration in range of motion. She had localized tenderness below the right lateral malleolus. Contributing factors to the Veteran's right ankle disability were swelling and disturbance of locomotion; however, the examiner found that there was no functional loss for the Veteran's left lower extremity attributable to the claimed condition. Muscle strength was normal. No ankylosis was noted. Ankle instability was not identified. No assistive devices were used. An August 2014 image study found no evidence of fracture or dislocation of the right ankle. There was objective evidence of ankle crepitus. The Veteran reported right ankle pain when standing or walking for long periods of time. The Veteran did not report any left lower extremity function impact of her service-connected left shin splints. In February 2015, the Veteran reported chronic bilateral shin pain. In February 2016, the Veteran complained of bilateral shin and knee pain. An October 2016 VA preventative medicine note indicated that the Veteran complained of ankle pain. A June 2017 VA podiatry note indicated that the Veteran experienced bilateral ankle pain outside of both ankles. She reported relief with use of a TENS unit and mini thumper. Also, she wore a neoprene ankle brace daily, which helped with pain and swelling. Upon examination, there was no pain on palpitation of the ankle joints bilaterally, and no crepitation with range of motion bilaterally. There was pain on palpitation of the ATFL bilaterally; however, there was no pain on palpitation pf the PTFL, CFL, and sinus tarsi bilaterally. The posterior tibial tendon was slightly bulbous in nature bilaterally. Also, there was pain on palpitation of the medial calcaneal tubercle, central and lateral plantar facial bands, proximal plantar to the sesamoids, and heels, bilaterally. She was diagnosed with bilateral plantar fascitis and bilateral pes planus. In April 2018, the Veteran reported constant aching pain of her bilateral shins. Pain was relieved with medication. Movement worsened her pain. In September 2018, the Veteran underwent a VA examination for knee and lower leg conditions. She was diagnosed with bilateral shin splints. She reported constant aching pain of the bilateral shins that had been worsening. Pain was worse with activity, weight-bearing, pressure to region, and with cool/wet weather. No medication was currently used; however, Naproxen was used with flare-ups. The Veteran reported that she was unable to run due to her shin splints. She had difficulty with prolonged standing, walking, ascending/descending stairs, and resistant exercises. Range of motion testing was normal for the bilateral knees. No pain upon examination was noted (including passive and non-weight-bearing testing), nor was there objective evidence of localized tenderness or pain on palpitation of the knee joints. There was no change in range of motion upon repetitive testing. Muscle strength was normal bilaterally. The Veteran did not have muscle atrophy or ankylosis. The Veteran did not have joint instability, subluxation, or a history of recurrent effusion. The Veteran had bilateral "shin splints" (medial tibial stress syndrome) and a stress fracture of the bilateral lower legs. The conditions did not affect range of motion of the knee or ankle. They were manifested by a constant ache to the bilateral shins. Pain was worse with weight bearing, pressure, and cool/wet weather. The Veteran had not had a meniscus condition. The Veteran did not report using an assistive device. An image study did not show degenerative or traumatic arthritis. No other significant diagnostic test finding, or result was noted. The examiner found that the Veteran's condition impacted her ability to perform any type of occupational task. The examiner estimated that the Veteran would miss between zero and one week of work due to difficulty with prolonged standing, walking, and ascending/descending stairs (light, moderate, and strenuous types of jobs). During her December 2018 Board hearing, the Veteran asserted that her service-connected bilateral shin splints increased in severity. She specifically asserted that she had constant throbbing pain in her legs between her bilateral ankles and knees. She experienced flare-ups when exercising or standing. Also, her ankles continually made a cracking noise. She noted that her bilateral knee and ankle range of motion was not affected by her increased pain. In December 2019, the Veteran underwent another VA examination for ankle conditions. She was diagnosed with a right ankle sprain with shin splints. She reported injuring her right ankle during active service in 2004 and being diagnosed with a right ankle strain. The Veteran noted right ankle pain had increased in the last 12 months and that she could not wear shoes that touched her right ankle as it would cause sharp pain. Her current symptoms included constant tingling pain, and intermittent sharp increased pain. She reported flares when wearing shoes that touched her right ankle. She reported no current treatment. Upon examination, bilateral ankle range of motion was normal and no pain was noted upon examination. However, there was objective evidence of localized tenderness or pain on palpitation of the right ankle. The Veteran winced when the examiner inspected the right medial ankle. The severity was assessed as mild and was directly related to the right ankle sprain. There was no additional loss of function or range of motion after repetitive use testing. Muscle strength was normal bilaterally. The Veteran did not have muscle atrophy or ankylosis. The Veteran did not have joint instability. The Veteran had bilateral "shin splints" (medial tibial stress syndrome) and a stress fracture of the bilateral lower legs. The conditions did not affect range of motion of the knee or ankle. No assistive device use was reported. An image study did not show degenerative or traumatic arthritis. Specifically, the March 2017 MRI noted no abnormality in the left lower extremity; however, the right lower extremity indicated that a right ankle joint effusion was suspected. The examiner found that the Veteran's right ankle condition did not impact her ability to work. Also, in December 2019, the Veteran underwent another VA examination for knee and lower leg conditions. She was diagnosed with left shin splints and a right ankle sprain with shin splints. She reported begin diagnosed with shin splints at the end of her military service and that the pain had increased in both lower legs. The bilateral leg pain was located below the knees and just above the ankles. She rated her pain as 8-9/10 and stated that it was deep, sharp, and bruised-type feeling. She did not report flares, or having any functional loss or functional impairment of her bilateral lower leg conditions. Bilateral knee range of motion was normal. There was no change in range of motion upon repetitive testing. Muscle strength was normal bilaterally. The Veteran did not have muscle atrophy or ankylosis. The Veteran did not have joint instability, subluxation, or a history of recurrent effusion. The Veteran had bilateral "shin splints" (medial tibial stress syndrome). The condition did not affect range of motion of the knee or ankle. They were manifested by a constant deep, sharp, bruised-type pain to the bilateral shins. The Veteran had not had a meniscus condition. The Veteran did not report using an assistive device. An image study did not show degenerative or traumatic arthritis. No other significant diagnostic test finding, or result was noted. The examiner found that the Veteran's bilateral shin splints did not impact her ability to work. The Board finds that throughout the appellate period, the preponderance of the evidence shows the Veteran's right ankle condition manifested in no worse than painful motion moderate in severity. As an initial matter, all image studies have shown that the Veteran does not have traumatic or degenerative arthritis. Therefore, DCs 5003 and 5010 are not applicable. Turning to the evaluation of the Veteran's right ankle based on limitation of motion, the Board finds that the Veteran's right ankle disability has been manifested by no more than moderate limitation from January 12, 2011. Revised Diagnostic Code 5271 provides that a 10 percent rating is assigned for moderate limitation (less than 15 degrees of dorsiflexion). The Veteran had full range of motion during the April 2011, August 2014, and December 2019 VA examinations. Thus, the Veteran's right ankle condition was not manifested by worse than painful motion or moderate limited motion when her symptoms are applied to either the former regulations or the revised regulations. See 38 C.F.R. § 4.71a, DC 5271; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code. As marked limited motion is not shown, a rating in excess of 10 percent for the right ankle disability is not warranted. Moreover, the Board finds that the Veteran is not entitled to a separate rating for her right shin splints under the new rating criteria for DC 5262, effective February 7, 2021. The current Diagnostic Code 5262 provides that a 20 percent disability 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. For the entire appeal period, the Veteran has not required surgical or other invasive therapy, nor does the record show required assistive devices, such as orthotics or other required conservative treatment for no less than 12 consecutive months. Thus, a separate increased rating under the new rating criteria for DC 5262 is not warranted. Furthermore, based on this competent medical and lay evidence, and in light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a compensable rating of 10 percent is warranted from January 12, 2011, for the Veteran's left shin splints. The Veteran has consistently reported pain of the left lower extremity with prolonged activity, as well as difficulty with prolonged standing, walking, ascending/descending stairs, and resistant exercises. Affording the Veteran the full benefit of the doubt, the Board finds these symptoms equate to slight impairment of the left lower extremity at the knee or ankle, as would warrant a 10 percent rating under DC 5262. As such, a 10 percent rating is granted for left shin splints from the date of the claim for increase, January 12, 2011. There was no evidence noting pain of the left lower extremity with prolonged activity within one year of the claim. The Board will now consider entitlement to disability ratings in excess of 10 percent for the entirety of the appeal period. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for the Veteran's left lower extremity at any time during the pendency of this appeal. The evidence of record does not demonstrate more than slight impairment, as would warrant the next higher evaluation. Specifically, the Veteran's left shin splints have not resulted in moderate impairment. While she has made credible reports of shin pain, increasing with use, she has consistently had full range of motion of both knees and ankles since her August 2014 VA examination, even after repetitive use. She is also without joint instability or loss of muscle strength. X-rays of the left lower extremity is also negative for degenerative or traumatic arthritis or other significant bony abnormalities. She has not required surgical or other invasive therapy. The preponderance of the evidence is against a finding of moderate impairment of the knees or ankles, as would warrant the next higher evaluation of 20 percent. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). There is no lay or medical evidence showing the Veteran's shin splints have been manifested by ankylosis of the knees or ankles, dislocated or removed semilunar cartilage, or genu recurvatum at any time during the appeal period. Therefore, Diagnostic Codes 5256, 5258, 5259, 5263, or 5270 are not applicable in this case. (Continued on the next page) In conclusion, the Board finds that a compensable rating of 10 percent is warranted from January 12, 2011 for left shin splints. The preponderance of the evidence is, however, against the Veteran's claims for disability ratings in excess of 10 percent for left shin splints and in excess of 10 percent for a right ankle sprain with shin splints at any time during the pendency of the appeal. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.