Citation Nr: 22017451 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-55 500 DATE: March 25, 2022 ORDER Entitlement to service connection for a right knee arthritis is granted. Entitlement to service connection for bilateral shin splints is granted. FINDINGS OF FACT 1. Since his separation from service, the Veteran has experienced continuity of symptoms of a right knee disability that eventually resulted in a diagnosis of arthritis. 2. The Veteran's bilateral shin splints had their onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee arthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral shin splints are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1977 to May 1981, August 1981 to September 1985, and September 1988 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction. As a preliminary matter, the Board notes that the Veteran's initial claim for service connection identified bilateral knee disabilities. See January 2015 VA Form 21-526EZ. The August 2015 rating decision on appeal denied, in part, service connection for bilateral knee disabilities. In appealing that decision, the Veteran asserted that his claim also included bilateral leg shin splints. See October 2015 Notice of Disagreement (NOD). The AOJ notified the Veteran that his initial claim did not include shin splints and that he would need to submit a claim on a standard form if he wanted to claim these conditions. See July 2018 and November 2015 Notification Letter. However, the Board finds that the Veteran's initial claim for bilateral knee disabilities can be broadened to encompass bilateral shin splints. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Murphy v. Wilkie, 983 F.3d 1313, 1320 (Fed. Cir. 2020) (explaining that, to comply with the Clemons lenient-claim-scope rule, "VA must look to all possible diseases or injuries for which the veteran could have reasonably expected to have included in the filing"); Grimes v. McDonough, 34 Vet. App. 84, 91-92 (2021) (determining the scope of claim may be informed by statements made after the initial claim and decision on appeal, to include statements in the NOD). As the issue of entitlement to service connection for bilateral shin splints was raised by the Veteran and not resolved by the AOJ, this issue remains pending on appeal and will be adjudicated here by the Board. Moreover, adjudication by the Board in the first instance is not prejudicial, as the outcome is favorable. 1. Entitlement to service connection for a right knee arthritis is granted. The Veteran relates his right knee arthritis to service. See October 2017 VA Form 9; October 2015 Notice of Disagreement. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including DJD (categorized as arthritis), may be presumed to have been incurred during service if they began in service and there is a continuity of symptomatology to the present. 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The first element of service connection is met, as the Veteran has been diagnosed with right knee degenerative arthritis. See July 2018 C&P examination. Furthermore, the evidence shows that the Veteran reported bilateral knee problems during active duty. On this point, the Veteran served on active duty from September 1988 to August 31, 2013. See DD Form 214. An August 9, 2013 private radiological study indicates that the Veteran reported "chronic" bilateral knee pain. (emphasis added). Moreover, an August 8, 2013 private treatment record states that the Veteran reported stiff knee joints with swelling and bilateral knee pain, and notes the possibility of osteoarthritis. Within one year of separating from service, the Veteran reported and was also treated for a right knee disability. On this point, September and October 2013 treatment records note bilateral knee pain and possible osteoarthritis. Shortly after one year from service separation, the Veteran continued reporting and receiving treatment for a right knee disability. See October 8, 2014 right knee MRI and treatment record (indicating bilateral knee pain and bilateral knee osteoarthritis and DJD); December 2014 private treatment record (bilateral knee pain). In addition, a January 2015 VA treatment record notes bilateral knee arthritis. Based on the evidence of continuous symptoms and treatment since service, the July 2018 negative nexus opinion is inadequate. The examiner based the negative opinion on the premise that right knee pain started in September 2014, which was one year after separating from active service. First, this premise is factually inaccurate. As noted above, the Veteran reported "chronic" bilateral knee pain during active duty. See August 2013 private treatment records (emphasis added). Second, although the examiner is correct that September 2014 is more than one year from his separation date, it is barely greater than one year at just 13-months post-separation, making that point insufficient to support a negative opinion. In sum, the evidence of record establishes that the Veteran reported chronic bilateral knee pain during active duty, that he continued to report bilateral knee pain within one year of service separation, that doctors noted the possibility of bilateral knee osteoarthritis within one year of service separation, and that just after one-year post-separation he was diagnosed with bilateral knee DJD and arthritis. The only negative nexus opinion of record is supported by a factually inaccurate premise and inadequate rationale, and therefore lacks probative weight. Accordingly, all elements of service connection for right knee arthritis based on continuity of symptoms are met, and the benefit sought on appeal is granted. 2. Entitlement to service connection for bilateral shin splints is granted. The Veteran relates bilateral shin splints to active service. See October 2017 VA Form 9; October 2015 NOD. The Board agrees. The first element of service connection is met as the Veteran has a current diagnosis of bilateral shin splints. On this point, the examiner checked "yes" in section VII of the July 2018 C&P examination, which asks, "does the Veteran now have or has [he] ever had recurrent [shin splints]." Specifically, the examiner checked the box for "shin splints" and indicated they affected both legs. The examiner further noted that the Veteran reported not being able to run due to shooting pain and pointed to his shins as the location of the pain, indicating that the condition was current. In addition to the examiner's endorsement of shin splints, the Board notes that the Veteran is competent to report the observable manifestations of shin splints, which he did at the examination. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that lay testimony is competent to describe certain conditions subject to lay observation). Accordingly, the medical and lay evidence establishes that the Veteran has a current diagnosis of bilateral shin splints. Although there is no nexus opinion of record regarding shin splints, remand is not necessary as the record contains probative evidence that the condition onset during active service. See 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim."). On this point, the May 2013 separation Report of Medical Examination states that the Veteran had chronic intermittent bilateral leg pain from recurrent shin splints and was on a profile for the same. Consistent with this evidence, the Veteran also credibly reported that his shin splints began during service and that he was on a profile for them. See July 2018 C&P examination. The July 2018 examiner also noted 1996 and 1998 bone scans, conducted during active duty, that revealed the presence of bilateral shin splints. In sum, the medical evidence shows that the Veteran's bilateral shin splints onset during active duty. 38 C.F.R. § 3.303(a). Therefore, entitlement to service connection for bilateral shin splints is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.