Citation Nr: 22017145 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-02 411 DATE: March 24, 2022 ORDER Entitlement to an evaluation in excess of 10 percent disabling for non-union of the right tibial tubercle is denied. Entitlement to an initial, compensable, disability evaluation for limitation of extension of the right knee is denied. Entitlement to a separate disability rating of 10 percent for recurrent subluxation or lateral instability of the right knee is granted. Entitlement to a separate evaluation for shin splints is denied. FINDINGS OF FACT 1. The competent evidence of record shows that the Veteran's non-union right tibial tubercle is manifested by painful flexion; flexion limited to 30 degrees has not been shown. 2. The competent evidence of record does not show the Veteran's non-union right tibial tubercle limits extension to 10 degrees. 3. The competent evidence of record shows recurrent subluxation or lateral instability causing slight impairment of the right knee. 4. The competent evidence shows the Veteran's shin splints were not incurred in or related to service, including as due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for non-union of right tibial tubercle have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to an initial, compensable evaluation for limitation of extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5261. 3. The criteria for entitlement to a separate disability rating of 10 percent for right knee nonunion tibial tubercle for recurrent subluxation or lateral instability under Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for entitlement to a separate evaluation for shin splints have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1982 to February 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The May 2015 rating decision denied an increased disability rating for non-union right tibial tubercle and service connection for any left knee condition. In September 2015, the Veteran submitted a notice of disagreement (NOD) for the increased rating and service connection claims. The RO issued a December 2015 statement of the case (SOC) continuing its denials and the Veteran subsequently submitted a January 2016 VA Form 9. A supplemental statement of the case (SSOC) continued the denials in November 2016. The Board remanded the issues in August 2018 and August 2020 for additional development. A February 2021 rating decision granted service connection for the Veteran's left knee condition. A subsequent February 2021 rating decision deferred the non-union right tibial tubercle claim. The Board remanded the non-union right tibial tubercle claim in April 2021. Prior to returning to the Board, the RO issued a June 2021 rating decision granting the Veteran service connection for right knee limitation of extension at zero percent effective June 16, 2021. In August 2021, the Board remanded the issues of entitlement to a rating in excess of 10 percent for non-union right tibial tubercle, entitlement to an initial, compensable rating for limitation of extension of the right knee, and entitlement to a separate evaluation for shin splints. After further development, the issues have returned to the Board for appellate consideration. The Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board concludes that the Agency of Original Jurisdiction (AOJ) has substantially complied with the prior remand directives. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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 a duty to assist argument). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent to which a veteran may have additional functional impairment beyond the limitation of motion objectively demonstrated, such as when the symptoms are most prevalent due to the extent of the pain and painful motion, weakness, premature or excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The rating schedule is intended to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Application of 38 C.F.R. § 4.59 is not limited to cases of painful motion in which there is a finding of arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Case law and VA guidelines anticipate that VA examiners will use information procured from relevant sources, including lay statements, to estimate additional functional loss during flare-ups of musculoskeletal disability. See DeLuca, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation. See 38 C.F.R. §§ 3.951, 3.957. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for "mild" includes not very severe. Webster's II New College Dictionary at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id at 704. Finally, definitions for "severe" include extremely intense. Id at 1012. It is also noted that the term "moderately severe" indicates impairment that is considered more than "moderate" but not to the extent as to be considered "severe." The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Normal range of knee motion (ROM) is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), lateral instability or recurrent subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259). See Lyles v. Shinseki, 29 Vet. App. 107 (2017). Under DC 5256, a 30 percent rating is assigned for ankylosis of a knee with favorable ankle in full extension, or in slight flexion between zero and 10 degrees and a 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees and maximum 60 percent rating is assigned for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. As to ankylosis, consideration must include whether the Veteran is functional ankylosed. Chavis v. McDonough, __ F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). DC 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability. An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. DC 5260 provides a noncompensable rating for limitation of flexion to 60 degrees, a 10 percent rating for limitation of flexion to 45 degrees, a 20 percent rating for limitation of flexion to 30 degrees, and a 30 percent rating for limitation of flexion to 15 degrees. DC 5261 provides a noncompensable rating for limitation of extension to 5 degrees, a 10 percent rating for limitation of extension to 10 degrees, a 20 percent rating for limitation of extension to 15 degrees, a 30 percent rating for limitation of extension to 20 degrees, a 40 percent rating for limitation of extension to 30 degrees, and a 50 percent rating for limitation of extension to 45 degrees. DC 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle warrants a 10 percent rating; characterized by malunion with a moderate knee or ankle disability warrants a 20 percent rating; and characterized by malunion with marked knee warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating. DC 5263 provides that genu recurvatum warrants a 10 percent rating. The Board notes that the criteria concerning the rating of knee disabilities under DC 5257 and DC 5262 were amended during the pendency of this appeal, effective from February 7, 2021. Specifically, the amendments changed the criteria for compensable ratings. 85 Fed. Reg. 76463 (Nov. 30, 2020) (eff. Feb. 7, 2020). When a regulation changes during the pendency of a claim, the version most favorable to the Veteran applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling in part Karnas v. Derwinski,1 Vet. App. 308 (1991)). However, the amended version cannot be applied prior to its effective date. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; see also Green v. Brown,10 Vet. App. 111 (1997). Under the amended DC 5257, for recurrent subluxation or instability, a 10 percent rating is warranted for 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. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. DC 5257 also provides that for a patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent warranty is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under the amended DC 5262, for impairment of the tibia and fibula, the disability is rated under appropriate knee diagnostic codes. A 40 percent rating for non-union with loose motion requiring a brace is still to be assigned under both versions DC 5262. Evidence The evidence of record contains May 2013 private treatment records in which the Veteran complained of bilateral knee pain. She described the pain as a constant burning, seven out of 10 on the pain scale. The clinician noted the pain was along the anteromedial aspect of her knee and that the Veteran reported stiffness in the morning. Her right knee flexion endpoint was 115 degrees with pain during the movement. Trace effusion in the knee was documented as well as marked medial joint line tenderness. X-rays showed moderative degenerative changes in the medial compartment with slight narrowing of the lateral compartments. June 2013 private treatment records showed the right knee as without effusion, slight limitation of motion, and medial joint line tenderness. ROM findings were not recorded. July 2013 private treatment records documented bilateral knee pain, including weight-bearing pain in each knee. While ROM findings were not provided, the Veteran's right knee was found to be without mechanical symptoms and possessing nearly full flexion. September 2013 private treatment records found the right knee unremarkable, showing minimal right knee symptoms. March 2014 private treatment records noted slight limitation of active flexion in the right knee without specific ROM findings. The Veteran explained it was difficult to walk due to her knee pain but denied locking or catching. August 2014 private treatment records showed the Veteran reporting flareups in both knees. She stated her symptoms had worsened progressively over the past six weeks and that the pain was aggravated by weight-bearing activities. She denied locking or catching in either knee. Flexion of the right knee was recorded as very slightly limited but without ROM findings. Trace joint effusion was noted along with medial joint tenderness. In May 2015, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with non-union right tibial tubercle. The Veteran reported flareups that would occur after prolonged use. ROM testing showed a flexion endpoint of 100 degrees and an extension endpoint of zero degrees. Pain was noted during testing but did not cause functional loss. There was no evidence of pain during weight-bearing. ROM during flareups was estimated to remain the same. The examiner documented there to be no ankylosis or instability. June 2015 private treatment records documented increased pain in both knees, with symptoms worsening over the last few weeks. The pain was determined to be mostly due to weight-bearing. While ROM findings were not provided, the examiner found very slight limitation of active flexion in the right knee. Medial joint tenderness and trace joint effusion were noted. Private treatment records from December 2015 recorded bilateral knee pain with stiffness. The pain was aggravated by weight-bearing and when the Veteran stood for prolonged periods, including during her job. Slight limitation of flexion of the right knee was noted without ROM estimates. The right knee exhibited mild tenderness. The Veteran submitted a January 2016 VA Form 9 in which she said her knee condition had worsened. In June 2016 private treatment records, the Veteran's right knee's active flexion endpoint was noted as 100 degrees and her extension endpoint as negative five. Medial joint line tenderness was observed along with trace effusion. In September 2016, VA treatment records showed the Veteran was referred for a knee brace for her right knee. In that month, the Veteran reported her right knee pain had gotten worse with somewhat of a flare since early August. Passive ROM was noted as full. In another September 2016 VA treatment record, the Veteran stated the right knee pain was constant and excruciating, sometimes waking her up while she slept. She stated her right knee was sometimes unstable but did not lock or catch. October 2016 VA treatment records reflect additional reports of right knee pain with swelling and the feeling of pressure in the knee. The Veteran confirmed she was wearing her knee brace. ROM testing of the knee showed full flexion and extension. Palpable crepitus was noted during flexion, but extension was completed without pain. The Veteran's gait was antalgic and right knee osteoarthritis was diagnosed. In November 2016, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with right knee degenerative arthritis. X-rays of the right knee noted a prominent bony excrescence of the tibial tuberosity. The location of the Veteran's pain was in the right lower leg, approximately six inches inferior to the medial side of the knee and two inches medial to the tibial tubercle that would get swollen since August 2016. The Veteran reported her knee would stiffen after working her eight-hour shift. She also reported flareups. ROM testing showed a flexion endpoint of 110 degrees and an extension endpoint of zero degrees without pain. ROM remained the same during repetitive use, but no ROM estimates were provided regarding the Veteran's ROM during repeated use over time or during flareups. The Veteran's muscles strength was normal. The examiner stated there were no shin splints, use of assistive devices, ankylosis, or instability. An additional VA examination was provided in July 2019. The clinician diagnosed the Veteran with degenerative arthritis and non-union tibial tubercle of the right knee. The Veteran denied flareups. ROM testing showed a flexion endpoint of 100 degrees with pain, and an extension endpoint of zero degrees without pain. Pain was also noted during weight-bearing, sitting, standing, and walking. ROM remained the same during repetitive use. The clinician described the Veteran's strength as normal and did not observe muscle atrophy, ankylosis, instability, shin splints, meniscus conditions, or the use of assistive devices. From the July 2019 examination, the clinician provided an opinion that the Veteran's degenerative arthritis was not caused by her service-connected non-union tibial tubercle. She stated the tibial tubercle is not part of the articulating knee joint, so it does not have any effect on arthritis. Instead, the Veteran's arthritis was due to aging and other factors. July 2019 and January 2020 VA treatment records documented right knee pain with full flexion with palpable crepitus and full extension without pain, along with an antalgic gait. In a May 2020 letter from the Veteran, she stated her knees would buckle when she would stand, caused her to walk with a limp, and would swell abnormally. She explained that she could not stand for two minutes without having to shift her weight between legs. She also reported that her knees worsened her posture, causing her to lean forward when she stands or walks. In September 2020 VA treatment records, the Veteran explained that her right knee felt weak. She said her right knee would give out and was painful. The pain would be aggravated by walking and weight-bearing. She also mentioned the knee would swell and make loud popping sounds. The clinician stated there was no atrophy in the right leg and, while the knee was large and puffy, there definitive effusion was not apparent. The Veteran underwent a VA examination of her right knee in December 2020. She was diagnosed with degenerative arthritis and non-union right tibial tubercle. The Veteran reported flareups between steroid injections and that she was unable to go up stairs due to her knee disability. Active ROM testing revealed a flexion endpoint of 95 degrees and an extension endpoint of zero degrees. Pain was noted on active and passive flexion, extension, weight-bearing, and non-weight bearing in the right knee. The right knee had severe tenderness on the interior patellar bone related to her non-union right tibial tubercle. Repetitive use ROM showed additional loss due to pain and lack of endurance, with a flexion endpoint of 90 degrees and extension endpoint of zero degrees. Repeated use over time was estimated to lead to additional loss or ROM due to pain and lack of endurance, with a flexion endpoint of 85 degrees and extension endpoint of zero degrees. No ROM estimate was provided during the Veteran's flareups. The examiner noted that swelling contributed towards the Veteran's disability. No muscle atrophy, ankylosis, instability, subluxation, recurrent patellar dislocation, shin splints, meniscus conditions, or assistive devices were observed. The December 2020 examination informed a February 2021 VA opinion which stated it was at least as likely as not that the Veteran's right knee degenerative arthritis was a separate condition from the non-union right tibial tubercle. The examiner explained that the arthritic changes in the Veteran's knee were anatomically distinct and not associated with her service-connected non-union right tibial tubercle. An additional VA examination was provided to the Veteran in June 2021. The Veteran was diagnosed with non-union right tibial tubercle. The Veteran did not report flareups but said she had functional loss in the form of difficulty standing, inability to tolerate bending down, and difficulty bearing weight. The examiner stated there was not a history of instability or recurrent subluxation of the knee, nor was their frequent effusion. ROM testing revealed a flexion endpoint of 50 degrees and an extension endpoint of 5 degrees. Pain was noted on both movements. Passive, repetitive use, and repeated use over time ROM were the same. The examiner noted tenderness on palpation and disturbance of locomotion which contributed to the disability. No muscle atrophy, ankylosis, recurrent subluxation or persistent instability, recurrent patellar instability, meniscus conditions, or assistive devices were observed. The examiner did diagnose the Veteran with shin splints, stating treatment was for less than 12 consecutive months. In September 2021, a VA opinion regarding the Veteran's right knee arthritis was provided. The examiner found it was less likely than not the Veteran's right knee arthritis was due to service, finding it more likely due to normal aging. She found it less likely than not the Veteran's arthritis was due to or the result of her service-connected non-union right tibial tubercle, as it was more likely due to normal aging. She found it less likely than not the Veteran's arthritis was aggravated beyond its natural progression by her non-union right tibial tubercle because pain over the knee joint line would indicate arthritis and there was no evidence of pain above the tibial tubercle. 1. Entitlement to an evaluation in excess of 10 percent for non-union of right tibial tubercle under DC 5260. The Veteran contends that she is entitled to a rating in excess of 10 percent for her non-union tibial tubercle. The Veteran's non-union of right tibial tubercle is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion). As noted above, a higher 20 percent evaluation is warranted under DC 5260 where there is limitation of knee flexion to 30 degrees. After thorough review of the evidence, the Veteran's knee flexion was never limited to 30 degrees or less. Knee flexion was limited, at its worst, to 50 degrees as shown in her June 2021 VA examination. Accordingly, the evidence is against a disability rating of 10 percent under DC 5260. The Board recognizes, however, that "painful" motion under DC 5260 warrants at least a minimum compensable rating pursuant to provisions of 38 C.F.R. § 4.59. Here, the evidence show that the Veteran has painful motion in her right knee during flexion. See, e.g., June 2021 VA examination. As such, the currently assigned disability rating of 10 percent, and no higher, for the non-union right tibial tubercle under 5260 is warranted. The Board next considered whether the knee disability under additional or alternative diagnostic codes pertaining to the knee would be more appropriate or advantageous. The Board found that the Veteran is not entitled to a separate rating under DCs 5256, 5258, 5259, 5262, or 5263. Regarding a separate disability rating under DC 5256, in this case, throughout the appeal period, the Veteran has not described or presented evidence of any specific functional loss or impairment consistent with that contemplated by ankylosis. Although the Veteran reported knee stiffness in May 2013, December 2015, and November 2016 medical records, the Veteran's right knee was consistently found to not be ankylosed. See May 2015 VA examination, November 2016 VA examination, June 2019 VA examination, December 2020 VA examination, and June 2021 VA examination. So, while the Veteran's motion may be limited, neither the lay nor medial evidence reflects the functional equivalent of ankylosis warranting a separate rating under DC 5256. Regarding a separate rating under DC 5258 and DC 5259, the Board finds that the evidence of record does not show that the Veteran has dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint of the right knee or removed semilunar cartilage. Although the Veteran has reported experiencing popping and swelling in her knee, there is no indication that she experiences any dislocated semilunar cartilage, and she has repeatedly denied any episodes of "locking" in the right knee. See March 2014 private treatment record, August 2014 private treatment record, and September 2016 VA treatment record. As such, a separate rating under DC 5258 and DC 5259 is not warranted for the right knee. Regarding a separate rating under DC 5262, the Board finds that the evidence of record does not show the Veteran's non-union right tibia tubercle as entitled to an increased rating under the previous or amended rating criteria. Under the previous rating criteria, a 10 percent rating was for impairment of the tibia and fibula characterized by malunion with slight knee impairment. Under the amended criteria, the disability is rated under appropriate knee diagnostic codes. Under both criteria, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. As to the previous criteria, the evidence of record does not show the Veteran's non-union right tibial tubercle as impairing the knee. Additionally, as to the criteria for a 40 percent rating, the Veteran was never required to wear a brace. The Board recognizes the referral for a right knee brace in September 2016 and the Veteran's statement that she was wearing the brace in October 2016, but the use of a brace was not documented thereafter. As to the amended criteria, as shown in the other parts of this section, the Veteran does not qualify for a higher disability rating under another diagnostic criteria. Regarding a separate rating under 5263, the Board finds there is no evidence of record indicating genu recurvatum warranting a rating. As such, the Veteran is not entitled to a separate rating under DCs 5256, 5258, 5259, 5262, or 5263. In reaching the above determinations, the Board has considered the Veteran's competent lay assertions. The Veteran is certainly competent to describe her observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, to include the Veteran's VA examinations and treatment records, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's knee disability. 2. Entitlement to an initial, compensable evaluation for limitation of extension of the right knee under DC 5261. The Veteran contends that she is entitled to a compensable rating for her non-union tibial tubercle. The Veteran's non-union of right tibial tubercle is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion). As noted above, DC 5261 contemplates a 10 percent evaluation with limitation of extension to 10 degrees. The evidence in the casefile shows the Veteran's extension, at its worst, was 5 degrees. See July 2021 VA examination. As such, a higher disability rating for the right knee limitation of extension is not warranted. 3. Entitlement to a separate disability rating of 10 percent for recurrent subluxation or lateral instability of the right knee under DC 5257. As mentioned previously, under the previous criteria for DC 5257, a 10 percent is assigned for slight recurrent subluxation or lateral instability. Under the amended DC 5257, a 10 percent rating is warranted for 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. In the light most favorable to the Veteran, the Board finds the Veteran's disability manifests recurrent subluxation or lateral instability that causes slight impairment. The Veteran reported on numerous occasions that her right knee was unstable or gave out. See September 2016 VA treatment record, May 2020 Veteran correspondence, and September 2020 VA treatment records. While the Board acknowledges the medical evidence finding the Veteran did not present with instability or subluxation (See May 2015 VA examination, November 2016 VA examination, July 2019 VA examination, December 2020, and June 2021 VA examination), the evidence is in relative equipoise as to whether the Veteran's disability manifests with recurrent subluxation or lateral instability causing slight impairment. As such, the Board finds a 10 percent rating for right knee slight recurrent subluxation or lateral instability is warranted. 4. Entitlement to a separate evaluation for shin splints. The Veteran contends that her shin splints represent a separate disability distinct from her service-connected non-union right tibial tubercle and thus warrant a separate disability rating. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). The Veteran was diagnosed with shin splints in a June 2021 VA examination. The Veteran was afforded VA opinions regarding her shin splints in September 2021. As for direct service connection, the examiner stated the shin splints were less likely than incurred in or caused by military service because the diagnosis of the disability did not occur until 36 years after leaving active duty. In addition, shin splints were said to be due to stress from activities like running, which the Veteran was not doing at the time. As for secondary service connection through proximate cause, the examiner stated the shin splints were less likely than not proximately due to or the result of the tibial tubercle because the two disabilities were completely different, with shin splints stemming from increased activity the Veteran did not currently undertake. As for secondary service connection through aggravation, the examiner stated the shin splints were less likely than not aggravated by the tibial tubercle because shin splits are in the mid/lower part of the tibia and are separate from the non-union tibial tubercle. (Continued on the next page) The Board finds the opinions competent, credible, and weighty. No other evidence or opinion on record supports the Veteran's shin splints as being due to service or the Veteran's service-connected disabilities. As such, the Board finds a separate evaluation for shin splints is not warranted. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.