Citation Nr: 22044293 Decision Date: 08/03/22 Archive Date: 08/03/22 DOCKET NO. 18-46 373 DATE: August 3, 2022 ORDER Entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the left lower extremity (LLE) is denied. Entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the right lower extremity (RLE) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's status post stress fracture with recurrent shin splint of the LLE does not more closely approximate impairment of the tibia and fibula with moderate knee or ankle disability; nor, from February 7, 2021, does it require treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. 2. Throughout the appeal period, the Veteran's status post stress fracture with recurrent shin splint of the RLE does not more closely approximate impairment of the tibia and fibula with moderate knee or ankle disability; nor, from February 7, 2021, does it require treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the LLE have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the RLE have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from April 1971 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2017 rating decision, the RO, in pertinent part, granted service connection for status post stress fracture with recurrent shin splint of the LLE and assigned a noncompensable evaluation, effective June 26, 2014; and granted service connection for status post stress fracture with recurrent shin splint of the RLE and assigned a noncompensable evaluation, effective June 26, 2014. The Veteran appealed for compensable initial evaluations. During the pendency of the appeal, the RO issued an August 2018 rating decision granting a higher 10 percent initial evaluation for status post stress fracture with recurrent shin splint of the LLE, effective June 26, 2014; and granting a higher 10 percent initial evaluation for status post stress fracture with recurrent shin splint of the RLE. The Veteran continued to appeal for higher initial evaluations for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). The Veteran and his wife testified before the undersigned Veterans Law Judge at a March 2020 Central Office hearing. A transcript of this hearing is of record. The case was initially brought before the Board in March 2020, at which time the Board remanded the issues on appeal for further development. The matters were subsequently returned to the Board. In a September 2021 decision, the Board denied a higher than 10 percent initial evaluation for status post stress fracture with recurrent shin splint of the LLE; and denied a higher than 10 percent initial evaluation for status post stress fracture with recurrent shin splint of the RLE. The Veteran appealed the September 2021 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2022 Order of the Court granting a May 2022 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the part of the September 2021 Board decision denying higher initial evaluations for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE and remand the matters for further proceedings consistent with the JMPR. The Veteran did not challenge the Board's decision to deny extraschedular ratings for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. Thus, those matters were dismissed by the Court. The case has been returned to the Board. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any 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 1. Entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the LLE 2. Entitlement to an initial evaluation in excess of 10 percent for status post stress fracture with recurrent shin splint of the RLE Procedural History As previously noted above, in the May 2022 JMPR, the parties agreed to partially vacate and remand the September 2021 Board decision. On that basis, the parties determined that the Board did not provide an adequate statement of reasons or bases for its decision when it did not adequately explain why the Veteran's symptomatology does not amount to more than a slight disability and analyze relevant evidence. Noting the 38 C.F.R. § 4.71a, Diagnostic code 5262 rating criteria under which the Veteran's disabilities have been evaluated, the JMPR discussed how under the pre-February 7, 2021 rating criteria for musculoskeletal system disabilities, Diagnostic Code 5262 rates impairment of the tibia and fibula on the basis of slight, moderate, or marked knee or ankle disability. However, because the Board did not explain why the Veteran's symptomatology amounted to more than a slight disability and did not explain what constituted a slight or moderate disability, the JMPR stated that the Board's statement of reasons or bases was inadequate. Further, the JMPR indicated that the Board did not adequately analyze relevant and potentially favorable evidence, in the form of March 2020 Board hearing testimony, which reflects the Veteran's reported symptomatology. Accordingly, a remand was also warranted for the Board to discuss the relevant evidence and how it factored into its decision. Analysis The Veteran asserts that his status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE are worse than his current evaluations reflect. At the March 2020 Board hearing, the Veteran testified that he wore compression hose on both legs for pain relief, to prevent him from developing blood clots in his legs, to reduce swelling in his legs, and to help him to walk and stand. The Veteran said that he could stand for 30 minutes and walk for about half a block. He said that he could not go on long walks, had difficulty rising from a seated position, and needed to grab both sides of an apparatus to make sure he was balanced. He said that he needed to take his time and get up slowly, but "other than that, [he was] okay." For relief, the Veteran said that he sat in his hot tub or jacuzzi to soak and took allopurinol for general pain relief. When it was cold, the Veteran said his symptoms became worse. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-1998. 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). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. The Veteran's status post stress fracture of recurrent shin splint of the LLE and status post stress fracture of recurrent shin splint of the RLE have each been currently evaluated as 10 percent disabling, effective June 26, 2014, under 38 C.F.R. § 4.71a, Diagnostic Code 5262. However, VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board notes that VA has amended the rating criteria for musculoskeletal system disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. With respect to disabilities of the knee, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth the relevant provisions. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), instability (Diagnostic Code 5257), dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (Diagnostic Code 5258), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. Diagnostic Codes 5260 and 5261 were not changed by the February 7, 2021 amendments. Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the Office of General Counsel (OGC) held that separate evaluations under 38 C.F.R. § 4.71a, Diagnostic Code 5260, (limitation of knee flexion) and 38 C.F.R. § 4.71a, Diagnostic Code 5261, (limitation of knee extension) can be assigned without pyramiding. Despite the fact that knee flexion and extension both occur in the same plane of motion, limitation of flexion (bending the knee) and limitation of extension (straightening the knee) represent distinct disabilities. Prior to February 7, 2021, Diagnostic Code 5262 rates impairment of the tibia and fibula. A 10 percent rating is assigned for impairment of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is assigned for impairment of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is assigned for impairment of the tibia and fibula with marked knee or ankle disability. A 40 percent is assigned for malunion of tibia and fibula. A 40 percent is assigned for nonunion of tibia and fibula with loose motion requiring brace. The Board observes that the words "slight," "moderate," and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, 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 C.F.R. §§ 4.2, 4.6. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Effective February 7, 2021, Diagnostic Code 5262 continues to rate impairment of the tibia fibula and provides new criteria for medial tibial stress syndrome (MTSS) or shin splints. A 40 percent is assigned for nonunion of tibia and fibula with loose motion requiring brace. 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. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS or 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 is assigned for MTSS or shin splints with treatment less than 12 consecutive months, one or both lower extremities. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE each do not warrant a higher 20 percent initial evaluation under Diagnostic Code 5262 under the pre-February 7, 2021 rating criteria. In other words, the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE each do not more closely approximate impairment of the tibia and fibula with moderate knee or ankle disability. In April 2015, the Veteran provided a June 2014 Knee and Lower Disability Benefits Questionnaire (DBQ), which was conducted by his private physician. The Veteran reported having intermittent aching and swelling, which temporarily limited activity. When the Veteran had flare-ups, it curtailed his usual four-mile walk. The Veteran did not use assistive devices. Range of motion testing revealed right knee flexion to 135 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 135 degrees without pain, and left knee extension to zero degrees without pain. Following repetitive use testing, the private physician found that the Veteran did not have additional limitation in range of motion. No functional loss and/or functional impairment was noted. The Veteran had normal muscle strength testing and joint stability testing results. There was no evidence or history of recurrent patellar subluxation or dislocation. The private physician found that the Veteran's bilateral leg conditions did not impact his ability to work. At a February 2017 VA examination, the Veteran reported having symptoms of bilateral shin pain five or six times per day, tenderness, stiffness, easy fatigue, swelling, and numbness. No bilateral knee symptoms were reported. The Veteran reported having flare-ups, which were described as pain when he walked. The Veteran reported having functional loss and/or functional impairment that he described as being unable to stand or walk for long periods and experiencing swelling and pain in feet and legs. Range of motion testing revealed right knee flexion to 140 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 140 degrees without pain, and left knee to zero degrees without pain. Upon repetitive use testing, the February 2017 VA examiner found no additional loss of function or range of motion. For both the LLE and RLE, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. For both the LLE and RLE, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no ankylosis, no history of recurrent subluxation, and no history of lateral instability. The Veteran had normal muscle strength testing and joint instability testing results. The February 2017 VA examiner found that the Veteran's bilateral shin condition impacted his ability to work, because he had partial impairment of physical activities of employment such as running, jumping, climbing, exercise, walking long distances, and prolonged standing. At a December 2020 VA examination, the Veteran reported having throbbing pain in both of his legs below the knees. He said that sitting made the pain better and walking for more than 30 minutes made the pain worse. He treated his bilateral shin condition by wearing thigh high bilateral compression hose all day and taking over-the-counter Ibuprofen every eight hours as needed. He denied having any flare-ups. He reported having functional loss and/or functional impairment that he explained was just in his lower legs, which started to really hurt if he walked or stood for longer than 30 minutes. He explicitly stated that his knees did not hurt. He said that he did not go shopping anymore, that he would drive his wife to the store, and that he waited for her in the car. Range of motion testing revealed right knee flexion to 135 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 135 degrees without pain, and left knee extension to zero degrees without pain. Following repetitive use testing, the December 2020 VA examiner found that there was no additional loss of function or range in motion. For both the LLE and RLE, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. For both the LLE and RLE, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no ankylosis, no history of recurrent subluxation, and no history of lateral instability. The Veteran had normal muscle strength testing and joint instability testing results. The December 2020 VA examiner found that the Veteran's bilateral lower leg condition impacted his ability to work, because he reported that standing or walking for over 30 minutes caused left and right lower leg pain. Based on the above clinical findings and the Veteran's subjective reports, the Board finds that there is no basis upon which to award a higher 20 percent initial evaluation under the pre-February 7, 2021 Diagnostic Code 5262 for his status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. On that basis, the evidence demonstrates that the Veteran did not experience any bilateral knee pain, his bilateral knee range of motion was basically normal, he did not have additional loss of function or range of motion upon repetitive use testing, and there was no functional loss found with repeated use over a period of time or with flare-ups. Notably, on the April 2015 Knee and Lower Leg DBQ, the Veteran's private physician noted that the Veteran's flare-ups only curtained his normal four-mile walk. The Board recognizes the Veteran's subjective reports that he needed to use compression hose to relieve his bilateral shin pain, to reduce swelling, to prevent him from developing blood clots in his legs, and to assist him with walking and standing. He was also reportedly limited to standing for no more than 30 minutes and walking no more than half a block before he experienced bilateral leg pain. Further, the Veteran stated that he had difficulty rising from a seated position and used an apparatus to help with balance. Finally, the Veteran indicated that he could not shop anymore, but he was able to drive his wife and sit in the car while she shopped. The Board finds that these reports coupled with the objective findings are more representative of slight symptomatology, which as defined above meant "a small amount." Although the Veteran had limitations due to his bilateral shin pain, he had been using conservative treatment measures, in the form of compression hose, over-the-counter medications, and soaking in a hot tub or jacuzzi, to relieve his symptoms. While the Board is sympathetic to the Veteran's reports that his use of the compression hose was often uncomfortable to wear on a daily basis, especially during hot temperatures, the evidence does not show that the Veteran's bilateral shin problems were so unmanageable as to warrant more aggressive treatment. Further, the Veteran indicated that his difficulty with rising from a seated position meant that he had to move slowly and grab an apparatus for balance, but he did not indicate that he continued to have balance problems once he was standing. Overall, the evidence does not support that his symptoms more closely approximate impairment of the tibia and fibula with moderate knee or ankle disability. Accordingly, throughout the appeal period, the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE are each no more than 10 percent disabling under the pre-February 7, 2021 Diagnostic Code 5262. The Board recognizes that the February 7, 2021 amendment provides specific rating criteria for shin splints under Diagnostic Code 5262. In this case, the Board finds that from February 7, 2021, the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE also do not warrant a higher 20 percent evaluation under the amended February 7, 2021 Diagnostic Code 5262. In other words, the evidence does not show that the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE required treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. The Court has distinguished when rating criteria are conjunctive versus disjunctive. If conjunctive, such as evidenced by the use of the word "and" in a statutory provision or when reciting the relevant regulatory requirements, then all of the criteria must be satisfied to warrant a higher rating. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991). Whereas, if disjunctive, as evidenced by the use of the word "or" instead, then only one of the listed requirements must be met in order for an increased rating to be assigned. See Johnson v. Brown, 7 Vet. App. 95 (1994). On that basis, the Board notes that the amended February 7, 2021 Diagnostic Code 5262 includes both conjunctive and disjunctive elements. Thus, in order to assign a 20 percent evaluation under Diagnostic Code 5262 the use of the "and" means that "unresponsive to surgery" is a required element that must be met for the rating criteria. However, the Board finds that the Veteran's bilateral shin splints were not unresponsive to surgery, as the evidence demonstrates that the Veteran did not undergo surgery for his bilateral shin splints. Therefore, the Board finds that there is no basis upon which to award a higher 20 percent evaluation under the amended February 7, 2021 Diagnostic Code 5262. Accordingly, from February 7, 2021, the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE are each no more than 10 percent disabling. Finally, the Board considered whether the Veteran is entitled to higher or separate evaluations under Diagnostic Code 5260 or 5261 for limitation of flexion and limitation of extension, respectively, for his status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. As noted above, at no point during the appeal period did the Veteran's left knee or right knee manifest limitation of flexion less than 135 degrees or other than normal extension. Thus, the Board finds that there is no basis upon which to award a higher or separate evaluation under Diagnostic Codes 5260 or 5261 for the Veteran's status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. In summary, the evidence is neither evenly balanced or approximately so with regard to whether the Veteran's claims for higher than 10 percent initial evaluations for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE are warranted. Rather, the evidence persuasively weighs against higher initial evaluations for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to these claims. Lynch v. McDonough, 21 F.4th (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the higher initial evaluations claims for status post stress fracture with recurrent shin splint of the LLE and status post stress fracture with recurrent shin splint of the RLE are denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.