Citation Nr: 1301285 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 03-28 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a temporary total disability rating for convalescence pursuant to 38 C.F.R. § 4.30, for right foot surgery on January 7, 2002. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to April 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran had a hearing before the Board in December 2006 and the transcript is of record. This issue was previously before the Board in December 2010 and April 2012, when it was remanded for further development. As discussed below, in December 2010 the Board remanded the issue of entitlement to a temporary total disability rating for convalescence pursuant to 38 C.F.R. § 4.30, for right foot surgery on January 7, 2002, for readjudication including consideration of whether an earlier effective date for the grant of service connection for pes planus is warranted. As such, the Board identified a claim of entitlement to an effective date earlier than December 18, 2008, for the grant of service connection for pes planus. This issue is not on appeal before the Board; therefore, the proper course of action is to REFER it to the RO for appropriate action. FINDING OF FACT The Veteran underwent right foot surgery for nonservice-connected plantar keratoma on January 7, 2002. CONCLUSION OF LAW The criteria for a temporary total disability rating for surgery performed on January 7, 2002, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify was satisfied by way of a letter sent to the appellant in February 2002 that fully addressed all notice elements and was sent prior to the initial rating decision. In this case, although the notice provided did not address the effective date provisions that are pertinent to the appellant's claim, such error was harmless given that the claim is being denied and no effective date will be assigned. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran submitted private treatment records from Feet First Podiatry. The appellant was afforded VA medical examinations in December 2008 and May 2009 and medical opinions were rendered in January 2012, and May 2012. In December 2010 the Board remanded the Veteran's claim for the issue to be readjudicated including consideration of the effective date assigned for the grant of entitlement to service connection for pes planus. In January 2012 a Supplemental Statement of the Case (SSOC) was issued which indicated that readjudication should include consideration of the effective date assigned for the recent grant of service connection for pes planus, as secondary to the chronic tibial stress reaction. The Board notes that this SSOC contains no further discussion of the effective date for service connection for pes planus. The Board notes that in October 2010 the RO granted entitlement to service connection for pes planus and assigned an effective date of December 18, 2008. The effective date was assigned based upon a December 18, 2008, VA examination and a subsequent January 2010 VA medical opinion that associated the Veteran's pes planus with his bilateral tibial stress reaction. Review of the claims file reveals that the Veteran's claim for a temporary total rating received on January 14, 2002, and currently on appeal, references the Veteran's being service connected for the right foot and, therefore, may be read as a claim for entitlement to service connection for pes planus. Upon further consideration, the Board finds it unnecessary for the issue of the effective date of the grant of service connection for pes planus to be accomplished prior to adjudication of the issue on appeal. As noted above, review of the claims file reveals that the Veteran's claim for a temporary total evaluation was received on January 14, 2002, after the surgery. As such, to the extent that the claim of entitlement to a temporary total evaluation represents the claim for entitlement to service connection for pes planus, an effective date earlier than the Veteran's date of surgery is not available and, therefore, consideration of the effective date for the grant of service connection will not impact the Veteran's claim for a temporary total rating. See 38 C.F.R. § 3.400 (2012); see Soyini v. Derwinski, 1 Vet. App. 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant). In April 2012 the Board remanded the Veteran's claim for a VA medical opinion to be obtained. Subsequently, in May 2012 a VA medical opinion was obtained and associated with the claims file. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked, which are not impacted by the Veteran's receipt of a compliant notice letter. Here, during the hearing, although the Veterans Law Judge did not identify this issue as an issue on appeal and did not explicitly note the bases of the prior determination or note the elements that were lacking to substantiate the Veteran's claim, the Veteran's representative demonstrated actual knowledge of this information. The representative specifically asked whether any doctor ever provided the Veteran with an opinion that his foot condition that he received treatment for and surgery for was caused or a direct result of his service-connected tibial stress fracture. In addition, the representative asked that the Veteran be scheduled for an examination or at least a review of the record for an opinion regarding the likelihood of a link between the two conditions. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the Veterans Law Judge sought to identify any pertinent, outstanding evidence that might have been overlooked. The Veterans Law Judge specifically asked the Veteran where he received his treatment. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). II. Temporary Total Rating The Veteran contends that a temporary total rating is warranted for surgery performed on his right foot on January 7, 2002. Under 38 C.F.R. § 4.30(a), a total disability rating will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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); or (3) immobilization by cast, without surgery, of one major joint or more. In December 1999 the Veteran was noted to have chronic right foot pain. The right foot showed a prominent fifth metatarsal base with significant tenderness upon palpation with overlying large callous formation and possible plantar wart at the same area. Pes planus was also noted bilaterally. In June 2001 the Veteran was diagnosed with a hyperkeratotic lesion sub fifth metatarsal base which was nucleated. This condition was consistently treated and in November 2001 the Veteran was scheduled for surgery in January 2002. On January 7, 2002, the Veteran underwent an excision of porokeratosis of the right fifth metatarsal base. The preoperative diagnosis was right foot base of fifth metatarsal chronic porokeratosis. The postoperative diagnosis was right foot base of fifth metatarsal porokeratosis. Discharge notes indicate that the Veteran was to be non-weightbearing on the right lower extremity for three weeks and for the Veteran to keep the dressing on until the follow-up appointment. At the time of the surgery on January 7, 2002, the Veteran was in receipt of service-connected benefits for chronic tibial stress, bilateral. The Veteran's claim for entitlement to a temporary total rating was received on January 14, 2002. Treatment records from Dr. C.W. and Feet First Podiatry reveal treatment for a painful lesion on the bottom of the right foot. In May 2007 the Veteran reported that he first sought treatment for his painful foot in February 2000. He indicated that he continued with treatment which eventually led to two surgeries, the first in November 2000 and the second in January 2002. The Veteran has reported that he received treatment from Feet First Podiatry and then from Dr. S. in Macon, Georgia. In addition, the Veteran has reported treatment for his foot disorder by Dr. W. at Feet First Podiatry since 2006. In December 2008 the Veteran was afforded a VA Compensation and Pension (C&P) examination. The Veteran reported that all of his troubles began due to the road marches in service. It was noted that the post service treatment records revealed that the Veteran was treated with Richie brace, orthopedic shoes, insoles, and Mobic. After physical examination the Veteran was diagnosed with chronic flatfoot deformity with residual plantar fasciitis mild to moderate in severity. The examiner rendered the opinion that the Veteran's bilateral tibial stress reaction is at least as likely as not aggravated by the Veteran's pes planus. In May 2009 the examiner again reviewed the claims file and obtained additional x-rays. The examiner diagnosed the Veteran with chronic flatfoot deformity with residual plantar fasciitis mild to moderate in severity. The examiner rendered the opinion that the Veteran's bilateral tibial stress reaction is at least as likely as not aggravated by the Veteran's pes planus. In January 2010 the claims file was reviewed by a VA examiner. The examiner rendered the opinion that the Veteran's chronic flatfoot deformity with residual plantar fasciitis is approximately due and causally related to or aggravated by the Veteran's service-connected bilateral chronic tibial stress reaction. The rationale provided was that the Veteran's flatfoot deformity had become more rigid due to the significant osteoarthritic changes particularly in the right talonavicular joint. Because of the proximal compensation that can occur because of the flatfoot deformity, this can cause a stress reaction in the proximal bone, which would be the tibia, which is the major weightbearing leg bone in the lower leg and symptoms could be caused thereof. In addition to that, the secondary equinus deformity that is present and related to his flatfoot deformity causes increased stress throughout the foot, which then reverses or in retrograde fashion goes back to the tibia. Upon examination in May 2012 it was noted that the Veteran's right foot surgery on January 7, 2002, necessitated at least one month of convalescence. In addition, the examiner rendered the opinion that the Veteran's right foot surgery was not done due to a service-connected bilateral tibial stress reaction. It was due to the plantar keratoma that was residually present after conservative care in the form of insoles and other treatment which ended up necessitating surgery to excise a porokeratosis. The Board finds that entitlement to a temporary total rating based on the need for convalescence following right foot surgery on January 7, 2002, is not warranted. The Board acknowledges that at the time of the surgery the Veteran was in receipt of service-connected benefits for bilateral tibial stress reaction. In addition, the Board acknowledges that the Veteran was awarded a temporary total rating based on the need for convalescence following surgery on the right foot in November 2000. The Board further acknowledges the Veteran's statements that his January 7, 2002, surgery was another attempt to provide relief for his right foot. However, after examination in May 2012 it was the opinion of the examiner that the Veteran's right foot surgery in January 2002 was not done due to service-connected bilateral tibial stress reaction. Instead the examiner noted that the surgery was performed due to a plantar keratoma that was residually present after conservative care in the form of insoles and other treatment which ended up necessitating surgery to excise a porokeratosis. The Board notes that service-connection for pes planus was not effective prior to December 18, 2008. As the Veteran was not in receipt of service-connected benefits for pes planus on January 7, 2002, and as the preponderance of the competent and credible evidence is against a finding that the Veteran's right foot surgery on January 7, 2002, was due to his bilateral tibial stress reaction, entitlement to a temporary total rating based on the need for convalescence following right foot surgery on January 7, 2002, is denied. ORDER Entitlement to a temporary total rating based on the need for convalescence following right foot surgery on January 7, 2002, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs