Citation Nr: 1312437 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-12 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for left knee surgery performed March 26, 2009. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in June 2012. A transcript of the hearing has been associated with the claims file. When this case was most recently before the Board in September 2012, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that per Rice v. Shinseki, 22 Vet. App. 447 (2009) a claim for an increased rating contains an implicit claim for total disability based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability. However, in this case, the Veteran testified in June 2012 that he took a regular retirement from his prior place of employment. As such, a claim for TDIU is not before the Board. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. Following a left knee injury that occurred while playing basketball in February 2009, the Veteran underwent left knee surgery on March 26, 2009, which required a period of convalescence. 2. The Veteran's injury and subsequent surgery were not the result of his service-connected bilateral knee impairment. CONCLUSION OF LAW The criteria for the assignment of a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for left knee surgery performed March 26, 2009, have not been met. 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided notice required under VCAA in June 2009, to include notice as required under Dingess. Moreover, after the letter was provided, the Veteran was afforded the opportunity to submit additional evidence and he did so. Furthermore, the claim was thereafter readjudicated. Therefore, the purpose of the VCAA notice was fulfilled. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA has also satisfied its duty to assist the Veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Available medical records have been associated with the claim folder. The Veteran was also afforded a VA examination in November 2012. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria and Analysis A temporary total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30, effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. A total rating will be assigned under 38 C.F.R. § 4.30 if treatment of a 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 of 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; or (3) immobilization by cast, without surgery, of one major joint or more. Id. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. The Veteran is service-connected for bilateral knee impairment effective from September 11, 2007. He contends, and testified before the undersigned, that he is entitled to a temporary total rating for a period of convalescence following left knee surgery on March 26, 2009. A March 2009 VA treatment record showed the Veteran injured his knee playing basketball with his grandsons in February 2009 and magnetic resonance imaging (MRI) showed ligament tear, requiring surgical repair. The Veteran sought treatment from a private physician; his surgical records have been associated with the claims file. A pre-surgical VA examination in February 2009 showed a normal left knee. Pursuant to the Board's September 2012 remand, the Veteran was afforded a VA examination in November 2012 in which the VA examiner stated, in pertinent part, that the Veteran had a history of bilateral knee pain in service but no diagnosis was given and the service exit examination showed a negative X-ray for bilateral knees. The examiner furthered that the Veteran worked after service and reported more recent trauma to his bilateral knees requiring arthroscopic surgeries and was diagnosed with rheumatoid arthritis in 2007. The VA examiner opined that the Veteran's left knee ligament tear and subsequent surgery in 2009 was less likely than not (less than 50 percent probability) related to his service-connected bilateral knee impairment; the knee pain while in service appeared to have resolved without complications and was very unlikely to cause or contribute to his left knee tear. The Board finds that the evidence of record is not sufficient to establish entitlement to a temporary total evaluation for left knee surgery. The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the Veteran is not competent to render an opinion concerning medical diagnosis or causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As discussed above, there is no probative medical evidence showing that the Veteran's left knee ligament tear and subsequent surgery in 2009 were related to his service-connected bilateral knee impairment. Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for left knee surgery performed March 26, 2009, is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs