Citation Nr: 1321613 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 07-04 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, to include on a direct basis and as secondary to service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. 2. Entitlement to a temporary total disability rating, pursuant to 38 C.F.R. § 4.29 (2012), due to hospital treatment in excess of 21 days. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and the Appellant ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a October 2005 and May 2006 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The former rating decision denied service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis. The latter rating decision denied a temporary total disability rating, pursuant to 38 C.F.R. § 4.29, due to hospital treatment in excess of 21 days. An appeal was perfected by the Veteran as to each of these determinations. In May 2008, the Veteran and the Appellant, his spouse, testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript of this hearing has been associated with the claims file. The Board remanded the issues comprising these matters for further development in a February 2009 decision. In September 2009, the Veteran died. If a claimant dies while a claim for any benefit or an appeal of a decision with respect to such a claim is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2012) may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C.A. § 5121A(a)(1) (West 2002 & Supp. 2012). This provision is applicable when the original claimant died on or after October 10, 2008. Id.; see also Fast Letter 10-30 (Aug. 10, 2010). The Appellant requested to be assigned "substitute claimant" in October 2009. She was determined by the RO in an April 2011 memorandum to be a proper substituted claimant. Subsequently, in April 2012, the Board again remanded the matters to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The development has been completed. The claims have been returned to the Board and are now ready for appellate disposition. The Veteran's Virtual VA paperless claims file was reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. The Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to be caused or aggravated by a service-connected disability. 2. During the course of the appeal, the Veteran was hospitalized by VA for a period in excess of 21 days from October 28, 2005, to November 24, 2005, from December 20, 2005, to February 1, 2006, and from May 6, 2008, to June 3, 2008, for the treatment of his non-service-connected residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis. CONCLUSIONS OF LAW 1. Service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, to include on a direct basis and as secondary to service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, is not established. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for the award of a temporary total rating pursuant to 38 C.F.R. § 4.29 based on hospitalization in excess of 21 days have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.29 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO and the AMC dated in September 2005, March 2006, March 2009, and April 2012 provided the Veteran (and subsequently the Appellant) with an explanation of the type of evidence necessary to substantiate the claims, as well as an explanation of what evidence was to be provided by the Veteran and the Appellant, and what evidence the VA would attempt to obtain on their behalf. Letters dated in June 2006, April 2008, and March 2009 also provided information concerning the evaluations and effective dates that could be assigned should the claims be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). All of these duty-to-assist letters were not provided before the initial RO adjudication of the Veteran's claims in the October 2005 and May 2006 rating decisions. However, after the letters were provided, the claims were then readjudicated in the January 2007 Statement of the Case (SOC) and the May 2007, July 2011, and December 2012 Supplemental Statements of the Case (SSOCs) based on any additional evidence received in response to these additional notice letters. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claims, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claims, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the claimant is given ample opportunity to participate effectively in the adjudication of the claims. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the claimant in the development of the claims. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's STRs, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Regarding the service connection claim, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that, during the course of the appeal, the Veteran participated in VA examinations in January 2005 and September 2005, the results of which have been included in the claims file for review. The examinations involved reviews of the claims file, thorough examinations of the Veteran, and medical opinions. Following the Veteran's death, the Appellant was afforded a VA medical opinion in April 2012. This medical opinion involved a review of the claims file, to include the two prior VA examinations, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the VA examinations and medical opinions are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the claims on appeal. Furthermore, the Veteran was afforded a Board hearing in May 2008. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ noted the issues as shown on the title page of this decision. See Board Hearing Transcript, page 2. The Veteran and the Appellant were assisted at the hearing by an accredited representative from Disabled American Veterans. Id. The representative and the VLJ noted the elements of the claims that were lacking to substantiate the claims for benefits. See Board Hearing Transcript, pages 8-11, 20-21. The VLJ then asked questions to ascertain whether the Veteran and/or the Appellant had submitted evidence in support of these claims. See Board Hearing Transcript, pages 9-11. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Id. Moreover, neither the Appellant nor her representative has asserted that VA failed to comply with the hearing requirements, nor 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 and the Appellant, through their testimony, demonstrated that they had actual knowledge of the elements necessary to substantiate the claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Board hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its February 2009 and April 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The February 2009 remand included sending the Veteran the VCAA notice letter in March 2009, and allowing him an opportunity to submit additional medical or other evidence in response. The April 2012 remand included obtaining a VA medical opinion, which was provided that same month. Finally, both remands included readjudicating the claims, which was accomplished in the July 2011 and December 2012 SSOCs. Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the claims on appeal. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran sought service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, to include on a direct basis and as secondary to service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. Now, the Appellant seeks this benefit on the Veteran's behalf. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The Board notes that the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the non-service-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). It appears as though the new regulatory amendment poses a new restriction on claimants. Nonetheless, because the Veteran's service connection claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, as this version is more favorable to the Veteran. See generally VAOGCPREC 7-03 and VAOPGCPREC 3-00. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires evidence of a current disorder. Here, a current diagnosis has been established. On VA examination in September 2005 the Veteran was diagnosed with status post transmetatarsal amputation of the right foot with several revisions with continued ulceration and possible osteomyelitis noted in the right foot. Thus, the Veteran has satisfied the first element of direct service connection. As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for documentation of residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, or its associated symptoms, to include infections. The Veteran's STRs document that in October 1975, the Veteran was treated for and diagnosed with a chip fracture of the right great toe of the distal phalanx. In November 1975, the Veteran was seen for removal of his large toenail. No further complaints are documented. At his April 1976 separation examination, his right foot and toes were normal. The Board notes that the Veteran is currently service-connected for residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. The first post-service relevant complaint related to the toes was the amputation of the toes in a September 2004 VA Medical Center (VAMC) treatment record. In October 2004, the Veteran was diagnosed with osteomyelitis of the right foot. Again, the Veteran's active duty ended in June 1976. As previously mentioned, the third element of direct service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. The Board notes that the probative medical evidence of record fails to provide this nexus. The Board observes that in September 2005, the VA examiner linked the Veteran's osteomyelitis and subsequent residuals (i.e. amputation) to the Veteran's original service injury. The Board finds that this opinion lacks probative value as no reasons or basis were provided for this finding. The Board finds that the April 2012 VA opinion is probative and it is afforded greater weight in determining whether the Veteran's current disability is related to the injury he had in service. The examiner stated that it was less likely as not that the Veteran's transmetatarsal amputation of the toes of the right foot with osteomyelitis, including residuals therof was due to, the result of or aggravated by his service-connected residuals of the right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. The injury that the Veteran claims resulted in his claimed disability is the fracture of the great toe. Thus, the Board finds that the examiner has in fact addressed a direct service connection theory of entitlement. In giving the opinion the examiner noted that review of the medical records fail to document chronicity of claimed conditions during service or after discharge from service. She specifically noted that service treatment records were silent for amputations, osteomyelitis and diabetes mellitus. She also noted that available medical literature fails to support a causative etiology between the fracture and the later development of infections and amputations. She went on to note that the Veteran developed diabetes mellitus postservice and that the progression of the disease led to his diabetic foot condition, osteomyelitis and amputation. The examiner has clearly indicated that there is no relationship between the Veteran's claimed disability and service. Additionally, one of the Veteran's VA treating physicians submitted a statement in February 2005, in which he characterized the Veteran's current right foot problems as "diabetic-related foot problems." Further, beginning in May 1997, the Veteran's diabetes mellitus was documented as poorly controlled. The preponderance of the evidence shows that the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis have been attributed to a non-service-connected disorder (diabetes mellitus), and not his active military service, including the injury in service. As such, service connection on a direct basis is not warranted. The Veteran also asserted that he underwent a transmetatarsal amputation of the toes of his right foot as a result of osteomyelitis, which was a residual of his service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. Now, the Appellant continues this contention. As noted above, the first element of secondary service connection requires evidence of a current disorder. Here, a current diagnosis has been established. On VA examination in September 2005, the Veteran was diagnosed with status post transmetatarsal amputation of the right foot with several revisions with continued ulceration and possible osteomyelitis noted in the right foot. Thus, the Veteran has satisfied the first element of secondary service connection. As stated above, the second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran is currently service-connected for residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. Thus, the Veteran has satisfied the second element of secondary service connection. As previously mentioned, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. In this regard, there are positive and negative medical opinions of record. Specifically, VA feet examinations complete with medical opinions were afforded to the Veteran in January 2005 and September 2005. At the former examination, it was noted that the Veteran had been "hospitalized on several occasions over the past few months for diabetic foot infection of the right foot" and that amputations including a transmetatarsal amputation of the toes of his right foot had been performed. The examiner opined that the Veteran's "recent amputations and initial infection were more than likely due to his poorly controlled diabetes and not his service-connected traumatic arthritis of his great toe." At the latter examination, it was noted that the Veteran has diabetes, developed an infection in his forefoot which eventually ended up requiring a transmetatarsal amputation of the right foot, and has a chronic right foot wound with evidence of osteomyelitis confirmed by a recent bone scan. The examiner opined that the Veteran's "current infection is more than likely due to residual osteomyelitis which occurred years prior from his original service injury." A negative medical etiology opinion followed by an apparent positive medical etiology opinion accordingly was of record. In April 2012, the Board found these medical opinions to be inadequate for several reasons. First, the same VA examiner performed both the January 2005 and the September 2005 VA feet examinations. The Board notes that this examiner came up with two different conclusions without any rationale. Second, none of the opinions considered whether the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis was aggravated by his service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. In other words, no opinion addressed whether a service-connected disability increased in severity the residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis. Third, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), and Stefl v. Nicholson, 21 Vet. App. 120 (2007), stand for the proposition that opinions must be supported by analysis, reasoning, or rationale to be entitled to any probative value. No explanation for either the negative etiology opinion or the positive etiology opinion was provided in this case. Fourth and finally, one factor for assessing the probative value of an opinion is its thoroughness and detail. Prejean v. West, 13 Vet. App. 444 (2000). Neither etiology opinion here was thorough or detailed, as suggested by the fact that neither was explained. Each simply provided a statement with no stated rationale for the conclusion reached. Accordingly, in April 2012, the Board remanded the service connection claim for another VA medical opinion to be obtained regarding the etiology of the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis. In April 2012, following a review of the Veteran's claims file, to include the two prior VA examinations, the VA examiner determined that the Veteran's current residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis was less likely as not (less than 50/50 probability) due to, or the result of, or aggravated by, his service-connected residuals of the right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. The examiner reasoned that a review of the currently available medical records fails to document chronicity of the claimed disorder during service or after the Veteran was discharged from the service. The examiner also pointed out that the Veteran's STRs are silent for any documentation of amputations, osteomyelitis, and diabetes mellitus. The examiner further reasoned that a review of the currently available, up-to-date medical literature fails to support a causative etiology between a healed fracture and the later development of infections and amputations. The examiner indicated that the Veteran developed diabetes mellitus post-service, and that the subsequent progression of that disease led to the Veteran's diabetic foot disorder. Finally, the examiner stated that a review of the currently available medical records fails to reveal new or different clinical evidence that would have any bearing on his current opinion. The Board notes that the Veteran's treating VA physician also submitted a statement in June 2008, but the physician did not provide a medical nexus opinion. Upon reviewing the medical opinions extensively, the Board finds the negative evidence outweighs the positive on the issue of secondary service connection. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As described above, the Board found the January 2005 and September 2005 VA medical opinions to be inadequate. As the April 2012 VA examiner provided a detailed explanation as to why the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis is not related to his service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, the Board finds the probative value of the April 2012 VA medical opinion is greater than the cursory conclusions of the January 2005 and September 2005 VA examiner. Additionally, as further support for the April 2012 VA medical opinion, one of the Veteran's VA treating physicians submitted a statement in February 2005, in which he characterized the Veteran's current right foot problems as "diabetic-related foot problems." At the time of his death, the Veteran was not service-connected for diabetes mellitus, and thus the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis have been attributed to a non-service-connected disorder. As the evidence is not in equipoise, secondary service connection is not warranted. Here, the VA examiner, who authored the April 2012 medical opinion, accurately and thoroughly characterized the evidence of record. The examiner's report of the Veteran's medical history and her clinical findings are consistent with the entire body of medical evidence of record. There is no basis on which to find that the April 2012 VA medical opinion is incomplete or insufficient in any way. The VA and private treatment records do not provide contrary evidence. As such, service connection on a secondary basis is not warranted. In reaching this decision, the Board has considered the Veteran's and the Appellant's arguments in support of the service connection claim. The Board acknowledges that the Veteran and the Appellant are competent to attest to factual matters of which they have first-hand knowledge, e.g., an injury during the military service or current symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. The Board notes that the appellant has testified at the 2008 Board hearing that she is a nurse. She argues that the fracture injury the Veteran sustained in service resulted in osteomyelitis and the subsequent amputation of the Veteran's toes. She does not provide any reasons and basis for the assertion and she has provided no evidence to support this contention. Additionally, she has not addressed the Veteran's diabetes mellitus and the impact the disorder may have on the Veteran's development of osteomyelitis. This is necessary as VA physicians has linked the Veteran's condition to diabetes mellitus. The Board finds that the physicians' opinions concerning linking the Veteran's claimed disability to diabetes mellitus is more probative than the assertion of the appellant as the opinions were based on a complete rationale, medical literature, and service and postservice medical. As it pertained to the Veteran's assertion as to the etiology of the claimed disability, the Board finds that he is not competent to comment on the medical etiology of the disorder, as it takes medical expertise and training to offer such an opinion in the instant case. In sum, the Board finds that the residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis was not incurred in service or due to any service-related event; is not due or caused by a service-connected disability; and is not aggravated by a service-connected disability. The evidence shows that such disability is due to the Veteran's nonservice-connected diabetes mellitus. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim of entitlement to service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, to include on a direct basis and as secondary to service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, is not warranted. III. Temporary Total Disability Rating The Veteran contended (and now the Appellant contends) that he had hospital treatment in excess of 21 days for osteomyelitis in his right toes and foot which led to amputation. A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (2012). In the present case, the Veteran, prior to his death, had been granted service connection for bronchial asthma, right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, and hypertrophic scar of the fibular sesamoidectomy. VA treatment records show that, during the course of the appeal, the Veteran was hospitalized for a period in excess of 21 days on three occasions. Specifically, from October 28, 2005, to November 24, 2005, from December 20, 2005, to February 1, 2006, and from May 6, 2008, to June 3, 2008, he was hospitalized by VA for the treatment of his non-service-connected residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis. The claims file contains other periods of hospitalization during the course of the appeal, but the hospitalizations were not for a period in excess of 21 days, and thus do not meet the initial requirement under 38 C.F.R. § 4.29. Regarding the first VA hospitalization in excess of 21 days, the treatment records document that the Veteran had a revisional transmetatarsal amputation of the right foot performed on October 17, 2005, and was then admitted to the Nursing Home Care Unit. On October 28, 2005, the Veteran was admitted for continuation of his IV antibiotics and wound care. From October 28, 2005, to November 24, 2005, the Veteran was hospitalized and treated for osteomyelitis of his right foot, status post revisional transmetatarsal amputation and wound closure. Regarding the second VA hospitalization, on December 20, 2005, the Veteran presented with complaints of nausea, vomiting, diarrhea and chest pain for approximately one week. He was then hospitalized from December 20, 2005, until February 1, 2006, for, in pertinent part, his chronic osteomyelitis. Regarding his osteomyelitis, the discharge summary stated that the Veteran was evaluated by Vascular Surgery and followed as an inpatient. He was placed on wound vac every day and had his wound debrided. Regarding the third VA hospitalization, the Veteran was admitted to the hospital on May 6, 2008 with possible sepsis. On May 13, 2008, a right transtibial amputation (BKA) was performed. The Veteran was then transferred to the rehabilitation unit. According to the discharge report, he was hospitalized by VA from May 6, 2008, to June 3, 2008, for, in pertinent part, staph aureus bacteremia, noncompliance, right transtibial amputation, and impaired mobility and selfcare requiring rehabilitation. The Veteran was also noted to have a diabetic foot infection on the June 3, 2008, VA discharge report. As determined above, the Veteran's residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis is not a service-connected disability. The treatment records do not indicate that the hospitalizations were due to or related to the Veteran's service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot. The Veteran's service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, or its associated symptoms, were not listed on any of the hospitalization discharge reports. Instead, all of the hospitalizations were related to the Veteran's non-service-connected osteomyelitis and its residuals, to include amputations, and not to any of his service-connected disabilities. None of the treatment records document that the Veteran underwent the amputations because of his service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, or to any of his other service-connected disabilities. Instead, the evidence of record documents that the Veteran was forced to undergo the amputations due to his non-service-connected osteomyelitis and his noncompliance with his treatment for this disorder. As the evidence of record shows that the VA hospitalizations were for a non-service-connected disorder, a temporary total disability rating cannot be granted. A temporary total disability rating under 38 C.F.R. § 4.29 is only available for hospitalizations for service-connected disabilities. Thus, the Veteran's claim of entitlement to a temporary total disability rating under 38 C.F.R. § 4.29 must be denied. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim, and thus that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. The claim of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization purposes is denied. ORDER The claim for service connection for residuals of transmetatarsal amputation of the toes of the right foot with osteomyelitis, to include on a direct basis and as secondary to service-connected residuals of a right great toe fracture of the distal phalanx with traumatic arthritis of the right foot, is denied. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospitalization purposes is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs