Citation Nr: 22015368 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-53 124 DATE: March 17, 2022 ORDER Entitlement to service connection for a back disability is denied. Entitlement to compensable disability rating for shin splints affecting the right lower extremity, prior to February 7, 2021, is denied. Entitlement to compensable disability rating for shin splints affecting the left lower extremity, prior to February 7, 2021, is denied. Entitlement to a 10 percent disability rating (but no higher) for shin splints affecting the right and left lower extremities is granted effective February 7, 2021. FINDINGS OF FACT 1. The evidence persuasively demonstrates that the Veteran's current disabilities of the back: did not manifest during his military service; were not otherwise caused by his military service; did not manifest to a compensable degree within one year of separation from service; and there is no benefit of the doubt to resolve in the Veteran's favor. 2. The evidence persuasively demonstrates that the Veteran's disability picture for his shin splints of the right and left lower extremities did not more nearly approximate nonunion or malunion of the tibia or fibula with knee or ankle disability prior to February 7, 2021. 3. The Veteran's disability picture for shin splints more nearly approximated a bilateral condition requiring treatment for no less than 12 consecutive months and was unresponsive to either shoe orthotics or other conservative treatment. 4. The Veteran's disability picture for shin splints more nearly approximated a condition that is unresponsive to surgery. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 2. The criteria for entitlement to a compensable disability rating for shin splints affecting the left and right lower extremities have not been met prior to February 7, 2021. 38 U.S.C. §§ 1101, 1110, 1113; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, DC (5262) (2020). 3. The criteria for entitlement to a compensable disability rating of 10 percent (but no higher) for shin splints affecting the left and right lower extremities have been met effective February 7, 2021. 38 U.S.C. §§ 1101, 1110, 1113; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, DC (5262) (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps on active duty from August 1983 to April 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2016 rating decision by the Veterans Benefits Administration (VBA). The Board remanded these matters in December 2018 and June 2021 for additional evidentiary development including obtaining additional medical opinions on (1) the etiology of the Veteran's back disability and (2) the Veteran's functional limitations due to shin splints. Regarding the opinion on the back, the Board instructed VBA to obtain an opinion that considered medical records from 1995 and 2003 indicating the Veteran reported a history of back pain and spasms since the time of his military service. Regarding the opinion on the shin splints, the Board instructed VBA to obtain an opinion that considered the Veteran's contention that prior examination findings did not account for his medication use prior to the examinations. The Board also granted entitlement to service connection for bilateral ankle disabilities and noted VBA's rating for those disabilities is intertwined with the rating for shin splints under the pertinent rating criteria. In an August 2021 rating decision, VBA assigned initial disability ratings of 10 percent for lateral collateral ligament sprains of each ankle. The Board finds VBA substantially complied with the Board's remand directives by obtaining medical opinions that substantially address the Board's concerns and provide a basis adjudicating the Veteran's claims without additional development of the record. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran and his representative have not raised any remaining issues with the duty to notify or duty to assist regarding the Veteran's claims following the additional development by VBA. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Therefore, the Board will proceed to adjudicate the merits of the Veteran's claims. 1. Entitlement to service connection for a back disability is denied. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Such diseases include arthritis. VA examinations of the Veteran's back have confirmed he experienced back disabilities during the period on appeal including back pain and arthritis with functional impairment (e.g. limitation of motion of the spine due to pain). The Veteran's service records document treatment for back pain, and VBA obtained several examinations of the Veteran's back to assist the Board in determining whether there is a nexus between the in-service injury and the current disabilities. A July 2016 VA back examiner noted that the Veteran was treated for mechanical lower back pain and a lumbosacral strain while in service without any significant injury or trauma. The examiner indicated that it is therefore not expected to have any long-term sequelae despite the radiographic evidence in the record of spondylosis and degenerative disc disease. The examiner opined that the Veteran's radiographic findings could be incidental. The examiner noted the disability was symptomatic at flare ups three to four times per year with increasing workloads and asymptomatic at the time of the examination. The examiner indicated that it is less likely than not that the Veteran's back condition is related to his service. A November 2019 VA examiner noted that the Veteran has low back pain and sciatica, and the examiner noted that the imaging revealed degenerative arthritis of the spine. The examiner noted that the Veteran was seen for mechanical back strain during his service. However, the examiner found no records of back problems after service until 2014. The examiner opined that the medical literature does not support uncomplicated low back strains such as those documented in service as causing degenerative arthritis. The examiner noted that records provided by Veteran document onset of symptoms about 2008, twenty years after discharge. The examiner noted that X-rays in 2009 showed minimal degenerative changes inconsistent with onset twenty years before. The examiner explained that degenerative arthritis of the spine is not typically the result of acute injury, rather it results from chronic repetitive use over a prolonged period. The examiner found that the Veteran's history of decades as a mail carrier is entirely consistent with his back condition. In September 2021, a VA examiner noted that the Veteran experienced back strain in service. The examiner acknowledged that the Veteran experienced back pain and spasm for some period after service. However, the examiner found extensive records from the Veteran's treatment providers do not show back spasms or muscle tenderness in 2014 or since. The examiner noted that a chart states in a note dated from January 2014 that: "chronic lower back pain, is here to establish care, recently moved to town from Detroit. He is a mail Carrier who had been dealing with lower back pain with left leg weakness since 2008." The examiner noted that the Board should note that the recorded statement should not be interpreted to mean that Veteran never had back pain prior to 2008. Rather, the examiner indicated that the Veteran first experienced the symptoms of the condition in question (i.e. degenerative arthritis with radiculopathy), in 2008. After reviewing pertinent evidence, the September 2021 back examiner concluded that Veteran experienced a muscular back strain in service that may have remained symptomatic for some period after discharge. The examiner found that by time Veteran was seen for symptoms of degenerative arthritis with radiculopathy, muscle tenderness and spasm were no longer documented in the record. The examiner clarified that the record supports two different back problems at two different times. The examiner opined that as noted in the 2019 exam, the medical literature does not recognize low back muscle strain as causing degenerative arthritis. The examiner noted a 2009 X-ray showed only mild degenerative changes precludes degenerative arthritis as being present and symptomatic during service twenty or more years before. The examiner opined that the current condition did not manifest during service or in the year following discharge. As the prior opinions failed to address evidence of reports of back pain in earlier records from 2003 and 1995 cited in the Board's remand orders, VBA obtained an addendum opinion in October 2021. The examiner opined that current symptoms of pain in the lumbar spine and radicular symptoms in the legs are due to degenerative arthritis of the lumbar spine. The examiner indicated that the current back disability is unrelated to any back strain in service. The examiner found that the only evidence of symptoms within a year of service is a single comment made more than 15 years after discharge. The examiner found the evidence was insufficient to establish symptoms during the Veteran's military service. The examiner noted the Veteran's treatment records show examiners found muscle spasm and no evidence of arthritis or radiculopathy. The examiner noted they attributed his symptoms to his physical work as a mail carrier. The examiner concluded the evidence reviewed does not support back spasms in 1995 an/or 2003 as due to an uncomplicated back strain in service. The examiner opined that the evidence shows the symptoms were due to the Veteran's work as a mail carrier. Specifically, the examiner opined that the Veteran's current diagnosis of degenerative arthritis and radiculopathy is due to decades of work as a mail carrier and is unrelated to an uncomplicated back strain in service. The Board affords some probative value to the opinions of the VA examiners regarding the etiology of the Veteran's back disabilities. While the Board finds the Veteran's reports of back pain and spasms to be credible, the VA examiners have persuasively determined that the etiology of the back pain and spasms prior to the filing of the Veteran's claim is distinct from the etiology during the period on appeal. The Board finds that the VA examiners have greater competency than the Veteran to identify the etiology of the Veteran's current back disabilities based on the examiners' medical education, training, and experience with reference to complicated medical imaging records and medical literature. The Board affords more probative value to the October 2021 opinion than the other opinions as it adequately supplements the earlier opinions and addresses inadequacies regarding the evaluation of favorable evidence including treatment records for back pain and spasms as early as 1995 and the Veteran's statements regarding his history of back pain and muscle spasms. Collectively, the Board finds the examiners persuasively explain that although the current back disability includes similar symptoms to the condition the Veteran experienced during his military service (e.g. pain and back spasms), it is a distinct condition caused by his post-service employment based on a review of the treatment history, medical imaging, and other evidence. Ultimately, the Board finds the record is insufficient to support a finding of a nexus between the Veteran's current back disabilities and the in-service complaints. The Board finds that the examiners' opinions that the current disabilities are distinct from the in-service disabilities is consistent with the findings in the service treatment records. For example, the Veteran's treatment records dated during the period on appeal as well as his VA examinations indicate that the Veteran suffers from arthritis and degenerative disc disease of the lumbar spine manifesting with radiculopathy indicative of an associated neurological injury. In contrast, the Veteran's treatment providers during his military service documented that his back disability at the time was free of radicular symptoms consistent with the current disability. See, e.g., January 1988 entries in the Veteran's service treatment records. The Board finds this evidence supports the conclusion of the VA examiners that the back strain resolved prior to the period on appeal and that the current disability was caused by the Veteran's post-service work as a postal carrier. In addition to the opinions of the VA examiners and treatment providers, the Board also notes that the Veteran has previously attributed the onset of significant symptoms with his post-service work as a postal carrier. For example, January 2014 treatment records from the Henry Ford Health system indicate the Veteran reported his current back problems started on the day when he bent to pick up a parcel as a mail carrier. Following the additional evidentiary development by VBA, neither the Veteran nor his representative have cited compelling medical evidence to the contrary rebutting the VA examiners' findings. Moreover, they have not requested the Board order additional evidentiary development in this matter or indicated additional development would assist the Veteran in supporting his claim. As competent and credible evidence in the record persuasively weighs against the Veteran's claim, there is no benefit of the doubt to resolve in the Veteran's favor. Accordingly, the Board denies the Veteran's claim for service connection for a back disability. 2. Entitlement to compensable disability rating for shin splints affecting the right and left lower extremities prior to February 7, 2021, is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran 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. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Prior to February 7, 2021, the rating schedule did not contain rating criteria specific to shin splints. VBA rated the Veteran's shin splints of the lower extremities under 38 C.F.R. § 4.71a, DC 5262, which contemplates impairment of the tibia and fibula. A 40 percent rating under DC 5262 contemplates nonunion with lose motion requiring a brace. A 30 percent rating contemplates malunion with marked knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability. A compensable rating of 10 percent contemplates a slight knee or ankle disability. See 38 C.F.R. § 4.71a, DC (5262) (2020). After reviewing the pertinent evidence of record, the Board finds that the Veteran's disabilities of the ankles are contemplated by his service connection for arthritis of ankles, which has been separately compensated. The VA examiners have consistently found that the Veteran's shin splints have not manifested with nonunion or malunion of the tibia or fibula with knee or ankle disability prior to February 7, 2021. The Veteran has not filed a notice of disagreement with the rating for the disabilities of the ankles, and the Board finds no compelling medical opinion evidence or contentions that the Veteran experiences a distinct disability of the ankles attributable to his shin splints and separable for rating purposes without pyramiding. Moreover, the Veteran and his representative have not presented competent medical opinion evidence or specific contentions with citation to evidence in support of an increased disability rating under the rating criteria in effect prior to February 7, 2021. They have not indicated additional evidentiary development would assist the Veteran in supporting his claim. Therefore, as the evidence of record is persuasively against the claim, the Board denies the Veteran entitlement to compensable disability ratings for his shin splints of the lower extremities under the rating criteria in effect prior to February 7, 2021. 3. Entitlement to a 10 percent disability rating for shin splints affecting the right and left lower extremities is granted effective February 7, 2021. However, effective February 7, 2021, the rating criteria for certain musculoskeletal disabilities was revised. The new criteria provide for higher disability ratings for medial tibial stress syndrome (MTSS) or shin splints apart from an approximation of a nonunion or malunion. Under the revised rating criteria for shin splints, a 30 percent rating contemplates 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. A 20 percent rating contemplates 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 10 percent rating contemplates 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 noncompensable rating contemplates shin splints with treatment less than 12 consecutive months, one or both lower extremities. See 38 C.F.R. § 4.71a, DC (5262) (2022). When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCPREC 11-97 (Mar. 24, 1997), VAOPGCPREC 3-2000 (April 10, 2000). Accordingly, the disability must be rated according to both the old and new rating criteria, and the Veteran must receive the benefit of the more favorable rating schedule. Pursuant to VA General Counsel Opinion, a new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." If there are no resulting retroactive effects, VA ordinarily must apply the new provision-however, at no point prior to the effective date of that provision. See VAOPGCPREC 7-2003 (Nov. 19, 2003); 69 Fed. Reg. 25179 (2004); 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. The Board finds the new rating criteria is more favorable to the Veteran's claim as it allows for the assigning of a separately compensable disability rating for shin splints apart from what is contemplated under the older criteria based on malunion, nonunion, and associated limitations of the knees and ankles. In this case, the Board finds that the evidence persuasively supports a finding that the Veteran's disability picture for shin splints more nearly approximated requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. The Veteran's treatment records and VA examinations confirm he experiences persistent pain from shin splints despite years of conservative treatment. See, e.g., July 2016 VA Knee and Lower Leg Conditions examination. (Continued on the next page) However, the Board finds that the evidence is persuasively against a finding that the Veteran's disability picture for shin splints more nearly approximated a condition that is unresponsive to surgery. The medical evidence in the record does not document surgical treatment for shin splints, and neither the Veteran nor his representative have presented an argument indicating the Veteran's shin splints required or requires surgery. The Board finds no there is no benefit of the doubt to resolve in the Veteran's favor for the purpose of granting a disability rating exceeding 10 percent under the applicable rating criteria. Accordingly, entitlement to a 10 percent disability rating (but no higher) for shin splints affecting the right and left lower extremities is granted effective February 7, 2021. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.