Citation Nr: 0811836 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-08 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an extension of a temporary total disability evaluation under 38 C.F.R. § 4.30 beyond March 31, 2004, based on a need for convalescence following right foot surgery. 2. Entitlement to an increased rating for an acquired hallux valgus of the right great toe, currently evaluated as 20 percent disabling. 3. Entitlement to service connection for a left ulnar nerve disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from September 1977 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from 2004 and 2005 rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The April 2004 rating decision granted a temporary total rating based on convalescence after right foot surgery, effective from January 12, 2004 to March 31, 2004. A 10 percent rating was assigned from April 2004. The veteran disagreed with the period of convalescence and the current appeal ensued. By rating decision of August 2004, the 10 percent rating was increased to 20 percent, effective from June 2004, for an acquired hallux valgus, right great toe, postoperative. By rating decision of August 2005, service connection for an ulnar nerve disorder was denied. The veteran disagreed with these decisions and the current appeals ensued. The issue of an increased rating for an acquired hallux valgus of the right great toe being REMANDED is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A temporary total rating was assigned from January 12, 2004 through March 31, 2004, based on a need for convalescence following right foot surgery. 2. The January 12, 2004, right first metatarsophalangeal fusion did not result in severe residuals or otherwise necessitate convalescence beyond March 31, 2004. 3. There is no competent medical evidence of record that links the veteran's left ulnar nerve disorder to any incident of active service. CONCLUSIONS OF LAW 1. The criteria for a temporary total rating beyond March 31, 2004 based on postoperative convalescence following right foot surgery have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 4.30 (2007). 2. Left ulnar nerve disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v Nicholson, 487 F.3d 881 (2007). In a letter dated in March 2002, the veteran was advised in accordance with the law regarding his 38 C.F.R. § 4.30 claim. An April 2003 letter advised the veteran in accordance with the law with regard to service connection for left ulnar nerve damage. This advisement was reiterated and amplified as to the status of the evidence of record in an April 2007 supplemental statement of the case. In Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits be assigned if service connection is awarded. The veteran received the notice consistent with Dingess March 2006. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes VA inpatient and outpatient treatment records, and a June 1996 private medical statement. The private medical facility that the veteran indicated treated him for his left ulnar nerve damage indicated in June 2005, that the medical records referencing the veteran's treatment by that facility had been destroyed. There are no known additional records to obtain. The veteran was offered a hearing and testified at a Travel Board hearing in February 2008. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Entitlement to an extension of a temporary total disability evaluation under 38 C.F.R. § 4.30 beyond March 31, 2004, based on a need for convalescence following right foot surgery. A rating decision dated April 2004, granted a temporary total rating for a period of January 12, 2004 to March 31, 2004 based on the veteran's right foot surgery, performed on January 12, 2004. The veteran contends that his temporary total rating should be continued past March 31, 2004. A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3) and extensions of 1 or more months up to a 6 month period may be made under § 4.30(a)(2) or (3). VA outpatient treatment records show that the veteran was seen two weeks status post a fusion of the right first metatarsophalangeal joint for a follow-up. He complained of some residual pain as his pain medication had run out. Physical examination showed the veteran's incision was clean and was dry without evidence of infection. The examiner removed the sutures and the wound was redressed with sterile gauze, Kerlix, and an ace wrap. The examiner indicated that the veteran was doing well. The plan was to continue to be nonweightbearing on the right for a period of six to ten weeks. He was asked to return to the VA orthopedic clinic in six weeks with x-rays on arrival. His pain medication was refilled at the time of the examination. In April 2004, the veteran was seen by VA in the orthopedic clinic on an outpatient basis. It was noted that the veteran had been nonweightbearing since his right metatarsophalangeal fusion in January 2004. He was advanced to applying pressure on his heel on his last orthopedic visit (January 22, 2004). He related that he had some pain under the first metatarsal head. Physical examination revealed no signs of infection, with the fusion neurovascularly intact. The x-rays of the right foot revealed no evidence of hardware loosening. It appeared to have good callous formation. The veteran was sent to the foot clinic for evaluation to see if it was appropriate to advance to weightbearing. A notation in the file indicated that he left after evaluation with the examiner and did not present for review with the clinicians in the foot clinic. Four days later, the veteran was seen in the VA orthopedic clinic for a follow-up of his right foot condition. It was noted that he had been in hard sole shoes, and weightbearing on his heel only. Physical examination revealed the veteran's wound was well-healed. There was no evidence of skin breakdown. He had no palpable hardware. His fusion was clinically solid and his toe was in an excellent position. There had been some hypersensitivity around the scar and over the medial aspect of the great toe. He had brisk capillary refill. The previous x-rays showed two screws in place, neither appeared prominent, and the fusion appeared solid radiographically as well. The veteran was told to begin weightbearing as tolerated. He was informed that there would be some discomfort in this area, but the examiner anticipated that in the long term, the fusion would do quite well. A prescription was written for a cane and to the Orthotics Clinic for cushion insoles. He was told that he should begin a progressive wean to a regular shoe, to return to the Orthopedic Clinic in four weeks for follow-up, and that it would take him another four to six weeks before he would be able to continue his work as a self-employed contractor. The veteran was seen that same day to order a cane. A manual muscle test was within functional limits. He needed minimal assistance with transfer. His gait analysis was intact. He was to undergo training for a cane. The Board has considered the veteran's contentions that additional convalescence was required beyond April 1, 2004. VA medical records dated in January 2004, as well as VA records as late as the beginning of April 2004, do not show evidence of severe postoperative residuals as contemplated in the governing regulation that would warrant an extension of the veteran's paragraph 30 benefits beyond March 31, 2004. Although the veteran continued to experience chronic symptoms such as residual pain beyond April 1, 2004, the evidence reflects that the surgical procedure did not result in postoperative residuals that were (1) incompletely healed surgical healed wounds, stumps or recent amputations; (2) require therapeutic immobilization of one major joint or more; (3) necessitate house confinement; or (4) necessitate immobilization by cast beyond the original period. A temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic following surgery. The Board concludes that the preponderance of the evidence is against an extension of a total disability evaluation for convalescence beyond March 31, 2004, for a right foot disability. In reaching its determination, the Board has carefully considered the veteran's contentions and the application of the benefit-of-the-doubt rule. 38 C.F.R. § 3.102. Service Connection-Left Ulnar Nerve Disorder The veteran maintains that he has a left ulnar nerve disorder as a result of an incident in service. He asserts that while in service, he injured his left elbow. He was treated by a corpsman and was led to believe it was only a soft tissue injury. He later injured his left elbow after service in 1995, and was informed that he had substantial scar tissue in the left elbow area that could not have been the result of his injury at that time. VA compensation is paid for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service medical records show that the veteran was treated on one occasion in service for his elbow. In November 1977, the veteran slipped on a ladder on ship and fell on his elbow. The medical report did not indicate which elbow was injured. It was noted that he was in quite a bit of pain. X-rays of the elbow were negative for fracture. The assessment was soft tissue injury. He was treated with heat and rest. There were no other findings, treatments, or diagnoses for a left elbow injury in service. After service, a June 1996 medical narrative record of North Texas Neurological Consultants received by VA in May 2005 indicated, in pertinent part, that the veteran was injured in a motor vehicle accident in December 1995. At that time, the veteran was evaluated with an electromyograph (EMG) which confirmed the diagnosis of a left ulnar neuropathy of the left elbow. There were no findings, relating the left ulnar neuropathy to any event in service. VA attempted to obtain additional medical records from the North Texas Neurological Consultants in June 2005. That same month, the facility notified VA that the records concerning treatment for the veteran's left elbow neuropathy had been destroyed. Further, the veteran sent a February 2006 letter to VA indicating that he attempted to get records regarding the 1995 injury from both his physician and his attorney to no avail. His former doctor and attorney destroyed the medical evidence after seven years. He also checked with Arlington Memorial Hospital where surgery of the left elbow was performed and those records had also been destroyed. In May 2006, the veteran underwent VA examination. History indicating that he fell on his elbow in 1977 was found in his service medical records. Additionally, the examiner indicated the veteran sustained injury to the left elbow in 1995 after a motor vehicle accident. He underwent an ulnar nerve release at that time. The pertinent diagnoses were ulnar nerve entrapment and ulnar nerve release. The examiner was asked to provide an opinion as to whether the veteran's left ulnar nerve neuropathy was related to the veteran's 1977 inservice accident. The examiner reiterated that there was only one note relating such an incident, he maintained that he had continued pain and numbness in the left elbow since the time of the inservice injury, and then after a 1995 motor vehicle accident, he underwent an ulnar nerve release for pain and numbness. With no records of treatment between 1977 and 1995, but the veteran complaints of pain, the examiner stated that it would be speculation to determine if the ulnar nerve neuropathy was related to his motor vehicle accident of 1995 or his inservice injury of 1977. The veteran's claim for service connection for left ulnar nerve disorder must fail. Service medical records are devoid of findings, treatment, or diagnosis for ulnar nerve disorder on all but one occasion in service. In 1977, the veteran was evaluated by a corpsman who indicated that he had sustained a soft issue injury of the elbow after falling from a ladder. X rays were negative, he was treated with heat and rest, and for the rest of his active service which culminated in 1982, there was no medical evidence of left elbow complaints. Not until 1995, when he injured his left elbow in an automobile accident, was there any complaint of left elbow pain and numbness. There is no medical evidence that links those two periods together to show that he has left ulnar nerve damage that can be linked to service. The veteran has not been able to obtain medical evidence of the 1995 treatment for left ulnar nerve damage, as he has indicated in a 2006 letter to VA that the medical evidence has been destroyed. There is no obligation on the part of VA to attempt to obtain records of the treatment the veteran alleges, as he thus acknowledges that such records do not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994). A VA examination performed in May 2006, indicates that the veteran does have left ulnar nerve damage, but the examiner stated that it would be speculation for him to state that the ulnar nerve damage was the result of the ladder fall in service, or the 1995 motor vehicle accident. Therefore, there is no competent medical evidence linking the ulnar nerve damage to service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The only evidence that attempts to provide a link of the left ulnar nerve disorder to the veteran's active service, is the veteran's statements of such. He gave hearing testimony to that effect in February 2008. The veteran's contention regarding the cause of his disability is not probative, since as a layperson he is not competent to provide medical opinions that otherwise require medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lacking a diagnosis of left ulnar nerve disorder in service, or competent medial evidence that links the veteran's diagnosis of left ulnar nerve disorder to service, a basis upon which to grant service connection for a left ulnar nerve disorder has not been presented. ORDER Entitlement to an extension of a temporary total disability evaluation under 38 C.F.R. § 4.30 beyond March 31, 2004, based on a need for convalescence following right foot surgery is denied. Service connection for a left ulnar nerve disorder is denied. REMAND Additional development is necessary with regard to the veteran's claim for an increased rating for hallux valgus of the right great toe. The veteran claims that his hallux valgus of the right great toe is more severe than the current 20 percent evaluation reflects. As to the issue of an increased rating for hallux valgus of the right great toe, the veteran testified in February 2008, that he was interested in undergoing additional examination regarding his right foot. He stated that his right great toe is frozen and that as a result, when he attempts to walk, he is unable to bend the toe and it drags all of the other toes along with the right great toe. He also complained of excessive callous under the right great toe. The record shows that he has not undergone VA examination of the right great toe disorder since July 2004. The veteran should be given a VA examination in connection with this claim. Accordingly, this case is REMANDED for the following action: 1. The veteran should undergo a VA orthopedic examination to determine the current degree of disability of his right great toe disorder. The claims file should be made available to the examiner to ensure awareness of the veteran's pertinent history. All indicated tests, should be accomplished. The examination should address if the veteran's current right great toe disorder is moderately severe or severe. 2. Adjudicate the issue of an increased rating for hallux valgus of the right great toe. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case, which sets forth the applicable legal criteria pertinent to this appeal. They should be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs