Citation Nr: 22013340 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-18 474 DATE: March 9, 2022 ISSUES 1. Whether the reduction of a disability rating for left knee shin splint from 10 percent to noncompensable, effective August 1, 2018, was proper. 2. Whether the reduction of a disability rating for right knee shin splint from 10 percent to noncompensable, effective August 1, 2018, was proper. 3. Entitlement to a disability rating in excess of 10 percent for left knee shin splint. 4. Entitlement to a disability rating in excess of 10 percent for right knee shin splint. 5. Entitlement to service connection for a back disability. ORDER The reduction of the rating from 10 percent to noncompensable for left knee shin splint, effective August 1, 2018, was improper, and restoration of a 10 percent rating is granted. The reduction of the rating from 10 percent to noncompensable for right knee shin splint, effective August 1, 2018, was improper, and restoration of a 10 percent rating is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for left knee shin splint is remanded. Entitlement to a disability rating in excess of 10 percent for right knee shin splint is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In a December 2015 rating decision, service connection for left knee shin splint and right knee shin splint was granted with evaluations of 10 percent each, effective August 27, 2015. 2. In a May 2018 rating decision, the RO reduced the Veteran's evaluations of left knee shin splint and right knee shin splint to 0 percent effective August 1, 2018. 3. At the time of the May 2018 rating decision, the evidence of record failed to establish objective improvement in the Veteran's overall functional impairment or in the frequency and severity of the symptomatology associated with his left knee shin splint and right knee shin splint. CONCLUSIONS OF LAW 1. The reduction in the rating for left knee shin splint from 10 percent to 0 percent effective August 1, 2018, was improper, and restoration of the prior rating is warranted. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.130, Diagnostic Code 5262 (2017). 2. The reduction in the rating for right knee shin splint from 10 percent to 0 percent effective August 1, 2018, was improper, and restoration of the prior rating is warranted. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.130, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to August 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in November 2021. A copy of the hearing transcript is of record. During this hearing, the record was held open for 90 days; the Veteran subsequently submitted additional private treatment records. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. Duty to Notify and Assist Given the favorable disposition of the claim for restoration of 10 percent ratings for left knee shin splint and right knee shin splint from August 27, 2015, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the Veteran's claim have been accomplished. See 38 U.S.C.A. § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b) (2017). Propriety of Rating Reduction The veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344 (a) & (b), which sets forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; 38 C.F.R. § 3.344 (c). The Veteran contends that the reduction of the 10 percent ratings assigned for his shin splints was improper and that restoration is warranted. In a December 2015 rating decision, service connection for left knee shin splint and right knee shin splint was granted with separate evaluations of 10 percent effective August 27, 2015. In a May 2018 rating decision, the RO reduced the Veteran's evaluations of left knee shin splint and right knee shin splint to 0 percent effective August 1, 2018. The Board finds that the protections afforded under 38 C.F.R. § 3.344 (a) & (b) are not for application, as the Veteran's rating had been in effect for less than five years. The ratings reduction from 10 to 0 percent was based on the findings in a VA examination that was conducted in March 2017, documenting that the shin splint disabilities had resolved. Prior to the March 2017 examination, the Veteran was afforded a VA-contracted examination in November 2015 in which he reported bilateral shin pain that started while he was in service sometime in 2000. Subsequent to the March 2017 examination, the Veteran was afforded a VA examination in April 2019 in which he reported that climbing stairs made his shin region painful and that he knew what aggravated his shin pain and avoided all activity. The Veteran also testified before the undersigned that he was wearing bilateral knee sleeves that made things appear better than they were at the time of the March 2017 examination. Within the March 2017 examination report, it was noted that the Veteran wore bilateral over-the-counter knee sleeves every day for the past 2 months. The Veteran also testified as to his shin splints causing worsening symptoms to include him not doing too many activities that involved movement of his legs because he knew what the pain outcome would be. As stated above, generally a reduction must have been supported by the evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer, 2 Vet. App. 277. Based on the foregoing, the Board finds that the evidence discussed above does not reflect an objective improvement in the Veteran's symptoms at the time the rating reduction in May 2018. The Board acknowledges the March 2017 examination report documenting that the shin splint disabilities had resolved. However, the Veteran has disagreed with the findings of this examination, stating that at the time he was wearing bilateral knee sleeves that made things appear better than they were. Within the March 2017 examination report, it was noted that the Veteran wore bilateral over-the-counter knee sleeves every day for the past 2 months. Moreover, the Veteran was afforded a VA examination in April 2019 in which he reported that climbing stairs made his shin region painful and that he knew what aggravated his shin pain and avoided all activity. In light of the foregoing, the Board finds that the competent and probative evidence reflects similar levels of impairment as well as severity and frequency of symptomatology. Indeed, the Board finds that the reduction of the Veteran's rating for left knee shin splint and right knee shin splint from 10 percent to 0 percent was not supported by the evidence. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). As such, the Board finds that the reduction was therefore improper. 38 U.S.C.A. § 5107 (a); see also Brown, 5 Vet. App. at 421. Accordingly, a restoration of the prior 10 percent ratings is warranted. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. REASONS FOR REMAND In regards to the claim for an increased rating for left knee shin splint and right knee shin splint, the Veteran was most recently afforded an examination to evaluate these disabilities in April 2019. Subsequently, the Veteran testified before the undersigned as to his worsening symptoms to include him not doing too many activities that involved movement of his legs because he knew what the pain outcome would be. Moreover, in this current matter, the Veteran's disabilities have been evaluated under Diagnostic Codes 5262. Under the former criteria, prior to February 7, 2021, Diagnostic Code (DC) 5262, which is used to rate impairment of the tibia and fibula and contemplates corresponding disability of the knee or ankle impairment, a 10 percent rating is warranted where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. Effective February 7, 2021, the new criteria under DC 5262 now includes specific rating criteria for medial tibial stress syndrome (MTSS), or shin splints and requires additional evidence, including length and type of treatment and responsiveness to treatment such as orthotics. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. As such, the Board finds that the Veteran should be afforded a new VA examination to address the severity of his shin splints to include consideration of the rating criteria in effect as of February 7, 2021. In regards to the claim for a back disability, the Veteran was afforded a VA examination in October 2016 in which the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that service treatment records reflected that the Veteran was treated for lumbar strain in 2003; he was not on profile at the time of discharge from service. The examiner stated that there were no treatment records following the 2003 incident, and the Veteran was at the time of the examination 13 years post discharge. The examiner stated that the current physical examination was normal, and X-rays were normal. In this case, the Board finds that the October 2016 VA examiner appeared to base the decision in part on the lack of a documented back disability at the time of discharge from service. The Board notes that the absence of in-service evidence of disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board finds that the Veteran should be afforded a VA examination on remand to address any back disability diagnosed during the pendency of this appeal to include back pain. To this point, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to in order to ascertain the current severity of the service-connected left knee shin splint and right knee shin splint. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes, to include consideration of the rating criteria under DC 5262 in effect as of February 7, 2021, and a discussion of the functional and occupational impact of the shin splints. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disability. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address the following: i.) Diagnose any current back disabilities. ii.) Is it as likely as not that any diagnosed back disability or the documented back pain alone manifested in service, or within the first-post service year, or is otherwise etiologically related to service, to include the documented complaints of low back pain in service in September 2003? The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not whether such pain symptomatology represents a functional loss. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.