Citation Nr: 22014103
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 16-03 630
DATE: March 11, 2022

ORDER

Entitlement to a rating in excess of 20 percent for a lumbar spine strain is denied.

Entitlement to a rating in excess of 10 percent for shin splints of the lower left extremity is denied.

A separate rating of 10 percent, as of November 3, 2021, for impaired and painful range of flexion of the left knee is granted, subject to the law and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's lumbar spine is manifested by, at worst, range of flexion limited to 50 degrees.

2. Throughout the period on appeal, the Veteran's left knee shin splints did not manifest with moderate recurrent subluxation or lateral instability of the knee; or a knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

3. As of November 3, 2021, the Veteran's left knee is manifested by, at worst, range of flexion limited to 100 degrees.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 20 percent for a lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5243.

2. The criteria for an evaluation in excess of 10 percent for shin splints of the lower left extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5262.

3. As of November 3, 2021, the criteria for a separate 10 percent rating for impaired and painful range of flexion of the left knee have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from April 1989 to June 1996. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

This case was previously remanded by the Board in April 2019 and April 2021.

The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in January 2019.  In the April 2021 Board remand, the Board noted that the VLJ that conducted the January 2019 Board hearing was no longer employed by the Board.  In March 2021, the Veteran and his representative were sent a letter notifying them and offering another hearing before a different VLJ.  The Veteran did not respond to the letter.  

The Board notes that, during the pendency of the claim, service connection for pleomorphic adenomas and parotid hematomas was granted in a November 2021 rating decision. As this claim has been granted, this service connection claim is no longer before the Board.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59.

The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

1. Entitlement to a rating in excess of 20 percent for a lumbar spine strain

The Veteran and his representative claim that he is entitled to a higher rating for his service-connected lumbar spine disability. The Veteran filed a claim for an increased rating, which was received on November 30, 2011. The disability is currently rated at 20 percent under the General Rating Formula for Diseases and Injuries of the Spine.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id.

The criteria also include the following provisions:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the veteran's mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

During the course of the appeal, the Veteran has been afforded two VA examinations in March 2013 and November 2021. While the Board notes that there was an examination of record in January 2020, the examination provided information for a different Veteran, as the Board is unable to confirm which Veteran was examined in this examination the results of the examination shall not be considered as a part of the medical evidence of record.

The March 2013 VA examiner diagnosed the Veteran with a lumbosacral strain. The examination of the thoracolumbar spine reveals no reported flare-ups. The Veteran's range of motion (ROM) was normal with pain on right lateral flexion. There was no additional limitation to ROM after repetitive use testing. The examination revealed normal muscle strength, reflex, and sensory testing. No functional impact was noted.

The November 2021 VA examiner diagnosed the Veteran with a lumbosacral strain and noted the Veteran reported having daily, severe flare-ups, that last several hours, described as pain stiffness and limited range of motion, precipitated by ambulation, walking, and when sitting for prolonged times. The Veteran's ROM was abnormal, specifically the Veteran's flexion was limited to 80 degrees (normal is 90), the extension was limited to 25 degrees (normal is 30), the right lateral flexion was limited to 25 degrees (normal is 30), the left lateral flexion was limited to 25 degrees (normal is 30), right rotation was limited to 25 degrees (normal is 30), and left rotation was limited to 25 degrees (normal is 30); with pain noted on motion. After observed repetitive use testing, there was additional limitation of motion due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 70 degrees, the extension was limited to 20 degrees, the right lateral flexion was limited to 20 degrees, the left lateral flexion was limited to 20 degrees, right rotation was limited to 20 degrees, and left rotation was limited to 20 degrees. After repeated use over time, there was additional limitation of motion due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 60 degrees, the extension was limited to 15 degrees, the right lateral flexion was limited to 15 degrees, the left lateral flexion was limited to 15 degrees, right rotation was limited to 15 degrees, and left rotation was limited to 15 degrees. During flare-ups, there was additional limitation to motion due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 50 degrees, the extension was limited to 10 degrees, the right lateral flexion was limited to 10 degrees, the left lateral flexion was limited to 10 degrees, right rotation was limited to 10 degrees, and left rotation was limited to 10 degrees. Additional factors contributing to the disability included interference with sitting and standing, less movement than normal, and weakened movement. The examiner noted that the Veteran didn't have guarding or muscle spasm, had normal muscle strength, normal reflexes, and normal results in a sensory exam. The examination also noted a normal straight leg raising test, and no radiculopathy was noted. No ankylosis was noted. The examiner determined the Veteran doesn't have IVDS. The examiner also noted that the Veteran does not use assistive devices due to this disability. The examiner opined that the Veteran's lumbar spine disability resulted in functional impact, resulting in limited range of motion, and stiffness causes weakness with prolong standing, ambulation and poor endurance with activity.

The Board finds that the medical evidence of record as of November 2011, reflects findings that are consistent with a 20 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period was his flexion, which was at 50 degrees with flare-ups due to pain, fatigability, weakness, and lack of endurance. However, that measurement squarely places the Veteran's limited movement within the 20 percent criteria for rating the back, including consideration of the Veteran's pain on functional use.

Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating.

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

The Veteran and his representative assert that his left shin disability warrants a higher rating. The Veteran filed a claim for an increased rating, which was received on November 30, 2011. The disability is currently rated at 10 percent for a tibia and fibula impairment, under 38 C.F.R. § 4.71a, Diagnostic Code 5262. 

For purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71.

Disabilities of the knee are rated under DC 5256 through DC 5263 of 38 C.F.R § 4.71a. A knee disorder can receive separate ratings, based on symptoms related to arthritis, stability, flexion, and extension. Where a Veteran has degenerative joint disease, which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. See VAOPGCPREC 23-97. When a Veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. VAOPGCPREC 9-98.

Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is rated 30 percent disabling; in flexion between 10 degrees and 20 degrees is rated 40 percent disabling; in flexion between 20 degrees and 45 degrees is rated 50 percent disabling; and extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. 38 C.F.R. § 4.71a.

During the pendency of the appeal, the criteria under Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the course of a claim, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from February 7, 2021, when the regulations became effective.

Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provided ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee was rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee was rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee was rated 30 percent disabling. 38 C.F.R. § 4.71a.

Under the rating criteria in effect since February 7, 2021, Diagnostic Code 5257 provides ratings for recurrent subluxation or instability and patellar instability. Recurrent subluxation manifested by a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 10 percent. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent. An unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, is rated 30 percent. 85 Fed. Reg. at 76463.

Diagnostic Code 5258 provides a 20 percent disability rating for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a.

Diagnostic Code 5259 provides a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98.

Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated at 0 percent disabling, flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint).

Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling, extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a.

Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5262 provided ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a.

Under the rating criteria in effect from February 7, 2021, Diagnostic Code 5262 provides that medial tibial stress syndrome (MTSS), or shin splints, is rated: With treatment for less than 12 consecutive months, for one or both lower extremities, 0 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, 10 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, 20 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, 30 percent. Malunion of the tibia and fibula is 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. Nonunion of the tibia and fibula, with loose motion, requiring a brace, is rated 40 percent. 85 Fed. Reg. at 76463.

During the course of the appeal, the Veteran has been afforded two VA examinations in March 2013 and November 2021. While the Board notes that there was an examination of record in January 2020, the examination provided information for a different Veteran, as the Board is unable to confirm which Veteran was examined in this examination the results of the examination shall not be considered as a part of the medical evidence of record.

The March 2013 VA examiner diagnosed the Veteran with bilateral medial tibial syndrome shin splints. The examination revealed no reported flare-ups. The Veteran's left knee range of motion (ROM) was normal. There was no additional limitation to ROM after repetitive use testing. The examination revealed normal muscle strength on testing. No instability was noted. There was no noted use of assistive devices. No functional impact was noted.

The November 2021 VA examiner confirmed a diagnosis of left knee shin splints and noted that the Veteran reported current symptoms of pain, stiffness, burning through the front area, and limited range of motion. The Veteran also reported having daily, severe flare-ups that lasts several hours described as sharp pain, burning, and numbness and tingling, precipitated by ambulation and cold weather, and alleviated by rest and use of doctor shock wraps. The ROM of the left knee shows that flexion was limited to 130 degrees (normal is 140), and extension is also normal at 0 degrees. There is pain noted on flexion and extension. There was additional limitation to ROM after repetitive-use testing due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 120 degrees and the extension was still normal. After repeated use over time, there was additional limitation to ROM due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 110 degrees and the extension was still normal. During flare-ups, there was additional limitation to ROM due to pain, fatigability, and weakness; specifically, the Veteran's flexion was limited to 100 degrees and the extension was still normal. Additional factors that contribute to the Veteran's left knee disability are interference with standing, less movement than normal, and presence of ship splints causes discomfort, hence pain with poor endurance with prolonged standing and ambulation. No ankylosis was noted. Joint stability testing at this time revealed no recurrent subluxation, lateral instability, or effusion of the left knee. No specific shin splint condition was noted; however, the Veteran was noted to use assistive devices for his left knee disability, notably doctor shock socks. No meniscal conditions were noted. No past surgeries were noted. No functional impact was noted. 

The Veteran is not entitled to a separate compensable evaluation for ankylosis because the record does not show any ankylosis of the left knee. Therefore, Diagnostic Code 5256 is not applicable.

Diagnostic Code 5257 applies when the Veteran has demonstrated recurrent subluxation or lateral instability. In this case, there is no evidence of recurrent subluxation or lateral instability. Therefore, Diagnostic Code 5257 is not applicable.

When semilunar cartilage (that is, the meniscus) is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In this case, there is no evidence of meniscal condition. Therefore, Diagnostic Code 5258 is not applicable.

When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In this case, there is no evidence of meniscal condition. Therefore, Diagnostic Code 5259 is not applicable.

In regard to Diagnostic Codes 5260, there is no compensable limitation of motion noted on examination, however there is limitation of motion and painful motion noted on the November 2021 VA examination. The Board finds that the Veteran shall be assigned a separate disability rating of 10 percent under Diagnostic Code 5260, under 38 C.F.R. § 4.59 and DeLuca, based on functional loss due to painful motion, as of November 3, 2021. 

In regard to Diagnostic Code 5261, there is no compensable limitation of motion for extension that can form the basis for the assignment of a separate disability rating. Therefore, the Board finds that a separate rating under this Diagnostic Code is not warranted.

As to Diagnostic Code 5262, the is currently service-connected for impairment of the Veteran's tibia or fibula, with a current 10 percent rating. 

Based on the rating criteria in effect prior to February 7, 2021, the Veteran's knee disability has not manifested to a moderate severity. Therefore, a rating in excess of 10 percent is not warranted under the prior criteria established for Diagnostic Code 5262.  

Based on the rating criteria in effect from February 7, 2021, the evidence has not shown that the Veteran's shin splints require treatment for at least 12 consecutive months, that his disability is unresponsive to surgery and either shoe orthotics or other conservative treatment. Therefore, a rating in excess of 10 percent is not warranted under the new criteria established for Diagnostic Code 5262.  

As to Diagnostic Code 5263, there is no probative evidence of any genu recurvatum. Thus, an increased or separate rating under this Diagnostic Code is not warranted.

Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that while he is not entitled to an increased rating for his left knee shin splints, the 

Veteran is entitled to a separate 10 percent rating under Diagnostic Code 5260 for his impaired and painful range of flexion of the left knee, as of November 3, 2021.

 

 

SCOTT W. DALE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. R. Montalvo, Associate 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.