Citation Nr: 0004226 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 96-51 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for shin splints of the left tibia, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for shin splints of the right tibia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from February 1988 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) which continued noncompensable ratings for bilateral shin splints. The veteran appealed the decision to the Board which remanded the case to the RO in September 1998 for further development. After completion of the requested development to the extent possible and continued denial of the veteran's claim the RO returned the case to the Board for further appellate review. During the course of this appeal the RO increased the ratings for bilateral shin splints to 10 percent each. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. The veteran's service-connected shin splints of the left tibia are manifested by pain upon palpation of the tibial area, barely elicitable knee and ankle jerks, range of ankle motion of 10 degrees dorsiflexion and 20 degrees plantar flexion, knee range of motion of 0 degrees extension and 125 degrees flexion, but no other pathology or significant abnormality. 3. The veteran's service-connected shin splints of the right tibia are manifested by pain upon palpation of the tibial area, some right calf weakness, barely elicitable knee and ankle jerks, range of ankle motion of 10 degrees dorsiflexion and 20 degrees plantar flexion, and range of knee motion of 0 degrees extension and 125 degrees flexion, but no other pathology or significant abnormality. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation for shin splints of the left tibia have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (1999). 2. The criteria for a 20 percent evaluation for shin splints of the right tibia have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to higher evaluations for his service-connected bilateral shin splints because the disorder is more disabling than contemplated by the current 10 percent ratings. A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more nearly the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability of the musculoskeletal system is primarily a damage- or infection-caused inability of a body part to move with normal excursion, strength, speed, coordination and endurance. A ratings examination must fully describe anatomical damage and functional loss in each of these areas. A functional loss may result from absence of a bone, joint, muscle or associated structure, or to a deformity, adhesion, defective innervation or other pathology, or it may be due to pain, provided claimed pain is supported by evidence of pathology and visible behavior of the claimant while undertaking the motion. Weakness is as effective an indicator of disability as limitation of motion and a body part which becomes painful on use is seriously disabled. 38 C.F.R. §§ 4.40, 4.45. In addition to applying schedular criteria, VA may consider granting a higher rating when the veteran is rated under a code that contemplates limitation of motion and additional functional loss due to pain or weakness is demonstrated. DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The RO granted service connection for bilateral shin splints in January 1994 and assigned a noncompensable rating for each leg under Diagnostic Code (DC) 5262. In October 1999 the RO increased the rating to 10 percent for each leg under the same DC. Shin splints are not specifically listed in the rating schedule. Therefore, this disability must be evaluated by analogy. See 38 C.F.R. § 4.20, 4.27 (1999). When a disability is not listed in the diagnostic code the VA may assign a rating pursuant to a code provision pertaining to a related disorder for which affected functions, anatomical localization and symptomatology are similar. Lendenmann v. Principi, 3 Vet. App. 345, 349- 350 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Evaluation of the veteran's shin splints under 38 U.S.C.A. § 4.71a, Diagnostic Code 5262 (1999), pertaining to an impairment of the tibia and fibula, is appropriate because the symptomatology is similar and affects the same functions and anatomical areas. Under DC 5262, a tibia and fibula impairment consisting of nonunion with loose motion and requiring a brace is to be rated at 40 percent. Malunion of the tibia and fibula with marked knee or ankle disability is to be rated at 30 percent, 20 percent for moderate knee or ankle disability, and 10 percent for slight knee or ankle disability. From the time of his separation from service to December 1998 there is little objective medical evidence documenting the severity of the veteran's service-connected bilateral shin splints. During a September 1995 VA general medical examination the veteran complained of painful bilateral shin splints upon exertion and the examiner confirmed tenderness upon palpation of the mid-tibial areas and diagnosed bilateral shin splints. However, the examination report included no additional findings pertaining to shin splints. A report of a July 1997 VA examination for bone disorders notes the veteran's in-service treatment for shin splints but otherwise does not address current shin splint symptomatology. VA treatment and hospital records from the time of the veteran's separation from service to December 1998 are similarly silent as to shin splint symptomatology. In December 1998 the veteran underwent another VA examination including lower leg X-rays and bone scans. The examiner noted pain upon palpation of the tibial areas, some right calf weakness, barely elicitable bilateral knee and ankle jerks, bilateral ankle range of motion of 10 degrees dorsiflexion and 20 degrees plantar flexion, and bilateral knee range of motion of 0 degrees extension and 125 degrees flexion. The report also notes that clinical examination and X-rays disclosed no pathology or significant abnormality in the veteran's legs. A contemporaneous tibia and fibula bone scan was negative. Normal range of ankle motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Normal range of knee motion is 0 degrees of extension and 140 degrees of flexion. Id. Therefore, the evidence shows that the veteran's range of ankle motion is less than half normal and that his range of knee motion is about six- sevenths of normal. The Board finds that these symptoms, along with objectively verified bilateral tibial pain constitute a moderate knee or ankle disability for which a 20 percent rating is warranted under DC 5262. However, the Board also finds that absence of additional objectively confirmed symptomatology and negative X-rays and bone scans preclude higher ratings under this code provision. The Board also has considered the availability of a higher rating under another DC pertaining to the knee, leg or ankle. However, no other provision is applicable to the facts presented here. The Board also notes that the record includes no medical evidence of functional loss due to shin pain or weakness. In reaching its decision the Board has carefully considered the history of the veteran's bilateral shin splints and possible application of other provisions of 38 C.F.R., Parts 3 and 4 (pertaining to extra-schedular evaluation), notwithstanding whether the veteran or his representative requested such consideration. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds that the record does not show the veteran's disability to be so exceptional or unusual, with factors such as marked interference with employment or repeated hospitalization, as to render application of the regular schedular standards impractical and warrant extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 20 percent rating for shin splints of the left tibia is granted. A 20 percent rating for shin splints of the right tibia is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals