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10-05 058
10-05 058
| Board of Vet. App. | Nov 30, 2017
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Background

  • 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)
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Case Details

Case Name: 10-05 058
Court Name: Board of Veterans' Appeals
Date Published: Nov 30, 2017
Docket Number: 10-05 058
Court Abbreviation: Board of Vet. App.