10-05 058
10-05 058
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served active duty Oct 2000–Aug 2008 and was service‑connected for bilateral shin splints effective Aug 12, 2008.
- RO initially assigned 0% (Apr 2009); increased to 10% for each lower extremity (Feb 2016). Appeal seeks ratings in excess of 10% for each leg.
- Case remanded for development in Sept 2015 and June 2016; VA examinations in Jan 2016 and Feb 2017 were obtained.
- Examiners found shin splint symptoms limited to pain with walking and running and no objective tibia/fibula impairment or ROM loss of knee/ankle attributable to shin splints.
- Veteran has separate service‑connected left knee arthritis (10%) and reported knee flare‑ups, but examiners did not link knee/ankle impairment to shin splints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to an initial rating greater than 10% for bilateral shin splints (DC 5262 analog) | Veteran contends symptoms warrant higher rating based on pain and functional limitation | VA contends evidence shows only pain with walking/running and no more than slight knee/ankle disability attributable to shin splints | Denied — evidence does not show more than slight knee/ankle disability or other criteria for >10% under DC 5262 |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (discussing continued appellate jurisdiction when increased rating granted but not fully favorable)
- Francisco v. Brown, 7 Vet. App. 55 (present level of disability is primary focus)
- Butts v. Brown, 5 Vet. App. 532 (assignment of diagnostic code depends on facts of the case)
- Tedeschi v. Brown, 7 Vet. App. 411 (appropriate use of rating by analogy)
- Scott v. McDonald, 789 F.3d 1375 (Board not required to raise procedural arguments not pressed by veteran)
- Dickens v. McDonald, 814 F.3d 1359 (duty to assist argument must be raised)
- Doucette v. Shulkin, 28 Vet. App. 366 (Board need only address issues raised by claimant or reasonably raised by record)
