Citation Nr: 22061395 Decision Date: 11/02/22 Archive Date: 11/02/22 DOCKET NO. 18-34 361 DATE: November 2, 2022 ORDER Service connection for Osgood-Schlatter disease of the right knee is granted. Service connection for Osgood-Schlatter disease of the right knee is granted. Entitlement to service connection for bilateral shin splints is granted. REMANDED Entitlement to service connection for bilateral exertional compartment syndrome is remanded. FINDINGS OF FACT 1. The Veteran's pre-existing Osgood-Schlatter disease underwent a permanent increase in severity during service. 2. The Veteran's pre-existing bilateral shin splints underwent a permanent increase in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for Osgood-Schlatter disease of the right and left knees have been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. 2. The criteria for service connection for bilateral shin splints have been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 29, 1986, to January 13, 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an August 2022 virtual hearing. Service Connection 1. Entitlement to service connection for Osgood-Schlatter disease of the right and left knee. 2. Entitlement to service connection for bilateral shin splints. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). To rebut the presumption of sound condition under 38 U.S.C. § 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted). The Board notes that the Veteran's December 1985 entrance examination shows that the Veteran had bilateral Osgood-Schlatter disease, and the presumption of soundness on entry in service does not apply for this disability. See Wagner, 370 F.3d 1089 (Fed. Cir. 2004). As to the Veteran's bilateral shin splints, such was not noted on the December 1985 entrance examination. However, the Veteran has testified, and concedes, that he had bilateral shin splints prior to service, and there is objective medical evidence that his bilateral shin splints existed prior to service. See January 1987 service treatment record (noting a history of shin splints in college); January 2012 VA Form 21-526 (seeking service connection for bilateral shin splints due to being aggravated during active service). As such, there is no presumption of soundness at service entry with respect to this condition. Thus, because the presumption of soundness does not apply, the Veteran bears the burden of showing that the pre-existing conditions worsened in service to trigger the presumption of aggravation. Id. The Veteran's service treatment records include a January 3, 1987, report noting his complaint of bilateral knee pain with swelling at times, and a history of shin splints in college; the diagnosis was bilateral shin splints, old fibula fracture. A January 5, 1987, entrance physical standards board proceeding report noted the Veteran was unable to begin basic training due to pain in the right leg. He reported the pain began after marching activities. He had a past injury to his leg last fall playing rugby where he was kicked in the side of the leg. At the time of injury, it was thought to be a bruise. The Veteran has a significant past history of Osgood-Schlatter disease with mild symptoms of anterior knee pain which have not precluded running type activities. X-rays revealed a healed fracture of the proximal right fibular shaft, mild prominence of the tibial tubercles. The diagnosis was bilateral Osgood-Schlatter disease. The evidence of record also includes a May 2014 VA knee and lower leg conditions examination that diagnosed bilateral Osgood-Schlatter disease and bilateral shin splints. The Veteran reported that he was in "great physical condition" when he entered active duty and began to have anterior shin pain in less than one week of marching in basic training. He conceded a history of shin splints prior to service. Since service, he reported receiving physical therapy for a few years right after service. The examiner opined that there was no medical evidence that his bilateral shin splints or Osgood-Schlatter disease were aggravated beyond normal progression by his military service, indicating that none of the conditions were incurred by his brief military service. The Board finds this examination and opinion to be inadequate as the opinion was conclusory in nature, without supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has also submitted in support of his appeal a January 2015 Dr. L.D. private medical opinion wherein the Veteran's primary conditions of bilateral shin splints and Osgood-Schlatter disease were diagnosed. It was opined, after review of the pertinent medical records, that more likely than not the physical traumas suffered during the Veteran's military active duty service noted in his records, caused, contributed to and aggravated his pre-existing conditions. Based on the evidence of record, including the Veteran's competent and credible lay testimony and his service treatment records showing treatment for his Osgood-Schlatter disease of the right knee and left knee, as well as bilateral shin splints (reflecting worsening of symptomatology), the Board finds that the presumption of aggravation has been triggered. As there is no competent opinion that such increase was due to the natural progress of the disease, service connection is warranted for bilateral Osgood-Schlatter disease and bilateral shin splints. REASONS FOR REMAND 3. Entitlement to service connection for bilateral exertional compartment syndrome is remanded. The evidence shows that in the fall of 1985 the Veteran was kicked in the right calf while playing rugby, originally thought to be a bruise, but later diagnosed as a healed fracture of the proximal right fibular shaft and exertional compartment syndrome. See January, June 1987 service treatment records. The Veteran was afforded a VA muscle injuries examination in May 2014. He was diagnosed with bilateral exertional compartment syndrome. It was opined that it was less likely than not the exertional compartment syndrome which existed prior to was service was aggravated beyond normal progression by the Veteran's brief military service. The Board finds this examination and opinion to be inadequate as the opinion was conclusory in nature, without supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that the Veteran has also submitted a supporting January 2015 private medical opinion from Dr. L.D. that diagnosed bilateral exertional compartment syndrome and opined that such more likely than not the physical traumas during the Veteran's military active duty service caused, contributed to and aggravated his pre-existing conditions. After a review of the evidence of record, the Board finds that this matter must be remanded for additional development. Specifically, the evidence shows that the Veteran suffered a fracture of the proximal right fibular shaft. Nonetheless, the evidence reflects diagnoses of bilateral exertional compartment syndrome. It is unclear whether the bilateral exertional compartment syndrome is related to the fracture of the proximal right fibular shaft prior to service, and if so, the nature and etiology of a bilateral diagnosis of exertional compartment syndrome. Hence, the Board finds that this matter must be remanded for an addendum opinion clarifying this matter. Outstanding VA treatment records may be pertinent to the claim on appeal, are constructively of record, and must be obtained. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain an addendum opinion regarding the onset and etiology of the Veteran's bilateral exertional compartment syndrome. After a review of the claims file, the examiner is asked to address the following: (a) Identify whether the Veteran has bilateral exertional compartment syndrome or right/left exertional compartment syndrome. (b) What is the likelihood evidence that the Veteran's exertional compartment syndrome existed prior to active service? The examiner is asked to specifically explain whether the exertional compartment syndrome is related to the fracture of the proximal right fibular shaft prior to service. (c) Regardless of the answer to question (b) please opine as to the likelihood that pre-existing exertional compartment syndrome was not aggravated during service? (d) If the answer to question (b) is no, what is the likelihood that the Veteran's diagnosed exertional compartment syndrome: (i) Had its onset in service; or (ii) Is otherwise related to the Veteran's service? A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptoms and this his reports (lay observations) must be considered in formulating the requested opinion. In responding to the above questions, the examiner is directed to consider and address the January 2015 Dr. L.D. positive private medical opinion. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.