Citation Nr: 1328214 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-38 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a temporary total rating based on convalescence for a service-connected disability. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to February 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2010 rating decision of the Waco, Texas, VA Regional Office (RO). In February 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Board previously remanded this matter in February 2012 and December 2012. In April 2013, the Board requested a medical expert opinion from a member of the Veterans Health Administration. The requested opinion was subsequently promulgated in June 2013, the Veteran was provided with a copy of this opinion the same month, and was given 60 days in which to send any additional evidence or argument. The Veteran responded in July 2013 that he had no further argument or evidence to submit, and that he would like the Board to immediately proceed with the adjudication of his appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran underwent surgery in February 2010 surgery to remove a Morton's neuroma affecting the left foot, with a postoperative recovery period from February 8, 2010, to March 22, 2010. 2. The preponderance of the evidence shows that the Morton's neuroma affecting the left foot and requiring surgery in February 2010 was not caused or aggravated by the Veteran's service-connected fracture of the left second metatarsal and is not otherwise etiologically related to the fracture of the left second metatarsal or to service. CONCLUSION OF LAW Basic eligibility has not been established and the criteria for a temporary total rating based on convalescence for a service-connected disability are not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a February 2010 letter, issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate her claim for service connection as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained service treatment records, relevant post service treatment records to include outstanding VA treatment records requested in the Board's March 2012 remand, and VA examination and opinion reports. Also of record and considered in connection with the claim are various written statements provided by the Veteran as well as a transcript of the Veteran's hearing testimony provided in February 2012. The Veteran has not identified any other evidence relevant to these claims. The Board notes that it previously remanded the matter on appeal in March 2012 and December 2012 for development, to include association of outstanding VA treatment records and VA examinations. Pursuant to those remands, additional VA treatment records were obtained and the Veteran was afforded VA examinations in April 2012 and January 2013. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. Specifically, the VLJ noted that the Veteran's claim was denied because the surgery for which he seeks a temporary total rating for convalescence was not for a service-connected disability. The VLJ also 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 claim. In this regard, the Veteran testified that he received VA treatment for his claimed disability and outstanding VA treatment records were obtained on remand. 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 identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for temporary total rating based on convalescence for a service-connected disability. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. II. Analysis A temporary total rating (100 percent) for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, 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. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. The United States Court of Appeals for Veterans Claims (Court) has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995). In a December 2010 rating decision, the RO denied a temporary total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on left foot surgery in February 2010. The RO denied the Veteran's claim on the basis that the Veteran's February 2010 surgery was not for a service-connected disability. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection has been established for a fracture of the left second metatarsal. He contends that he is entitled to a temporary total disability rating based on convalescence following a February 2010 surgery on his left foot. Specifically, he asserts that a February 2010 surgery to remove a Morton's neuroma affecting the third web space of the left foot, is related to his service-connected fracture of the left second metatarsal. The record also raises the issue of whether the Veteran's Morton's neuroma is directly related to service. Service treatment records show that the Veteran was initially seen for complaints of left third metatarsal dorsal pain in April 1984. He was assessed with rule-out stress fracture of the third metatarsal head and was prescribed crutches. During a subsequent follow-up appointment in April 1984, there was slight tenderness of the third metatarsal head of the left foot, but the pain was better. A diagnosis was rendered of resolving strain. Approximately one week later in April 1984, the Veteran was seen for continuing complaints of left foot pain. It was noted that the Veteran had point tenderness of the left second metatarsal head. He was referred to podiatry where he was diagnosed to have a stress fracture of the left second metatarsal. He was prescribed a toe plate and crutches. Subsequent service treatment records do not document further complaints relating to the left foot, however, there is no separation examination of record. The Veteran had a VA examination in February 2008 during which he complained of left foot pain and left foot stiffness. Imaging revealed flexion deformities of the second through fifth toes, metatarsus adductus of the second through fourth toes, and peristeal thickening of the second toe metatarsal shaft that could be the site of an old healed fracture. The examiner diagnosed status post second metatarsal fracture, asymptomatic, and metatarsus adductus of the left foot. During a subsequent August 2008 VA examination, it was again noted that the Veteran had a healed fracture of the second toe metatarsal of the left foot. The examiner also noted metatarsus adductus but indicated that his toes were replaceable without any tenderness of pain. Subsequent VA treatment records show that from March 2009 to June 2010, the Veteran was seen in podiatry for complaints of bilateral foot pain, left worse than right, for years. During that time he received injections to alleviate his left foot pain. He was also noted to have pain to palpation of the third interspace of the left foot. He was diagnosed with a painful neuroma of the third interspace of the left foot, for which he underwent surgery in February 2010. Subsequent VA treatment records dated through December 2012 show complaints of intermittent left foot pain following excision of the neuroma. The Veteran was afforded two VA examinations to address whether the Morton's neuroma affecting the left foot for which he had surgery is related to his service-connected fracture of the second left metatarsal. In April 2012, a VA examiner found that the Veteran's surgically treated Morton's neuroma was unrelated to his in-service uncomplicated fracture of the second metatarsal. The examiner noted that the Veteran's in-service fracture occurred 25 years ago and had long since healed, and that the Morton's neuroma was a coincident diagnosis and not associated with the in-service fracture. In January 2013, a VA examiner similarly found that the Veteran's Morton's neuroma was unrelated to his in-service stress fracture of the second metatarsal based on evidence showing that the Veteran's stress fracture occurred 24 years prior to the neuroma diagnosis; the stress fracture occurred at a different location than the neuroma; and the Veteran's weight problem more likely than not caused the Morton's neuroma. Significantly, however, neither VA examiner opined as to whether his service-connected fracture of the left second metatarsal aggravated his Morton's neuroma. Nor did they address the evidence in the service treatment records that, in conjunction with his complaints of left foot pain related to his fracture of the left second metatarsal in service, the Veteran also complained of pain at the left third metatarsal and was assessed with rule out stress fracture and resolving strain of the third metatarsal head. In April 2013 the Board specifically requested a VHA opinion to address whether the Veteran's Morton's neuroma, for which he underwent surgery in February 2010, is related to his service-connected fracture of the left second metatarsal or other left foot complaints in service. A VHA specialist opinion was obtained in June 2013. A podiatrist reviewed the Veteran's claims file, including service treatment records, and opined that the Veteran's Morton's neuroma did not have its onset during service, nor was it etiologically related to any stress fracture in service. Regarding the documented complaint of 3rd metatarsal pain in April 1984, the podiatrist opined that the Veteran most likely experienced referred pain at the third metatarsal from his second metatarsal where the fracture was diagnosed. The podiatrist further opined that the Morton's neuroma was not caused or aggravated by the Veteran's service-connected fracture of left second metatarsal. He concluded that the stress fracture was diagnosed and healed without any additional complaints over 25 years ago. He explained that bone essentially takes 6-8 weeks to heal. Regarding x-rays showing periosteal thickening of the second toe metatarsal, he noted that periosteal thickening is an indication of healed bone at fracture site. In further support of the opinions offered, the podiatrist noted that during the Veteran's post-service period, he gained great amount of weight, which can contribute to multiple foot and ankle problems. He pointed out that the Veteran's record shows complaints of joint pain to his left hip, knees, and feet, left greater than right. The podiatrist noted that as a result of the weight gain, the Veteran's feet most likely became edematous and swollen, leading to his pain and stiffness contributing to left foot symptoms. It was also noted that the Veteran was diagnosed with metatarsus adductus with metatarsals deviating toward midline of the body (medially) on x-ray. The podiatrist indicated that the diagnosis of metatarsus adductus and Veteran's weight gain can contribute to abnormal pressure being placed on outside of both feet during weight bearing and while standing. The podiatrist concluded that the factors most likely causing the Veteran's Morton's neuroma, in combination, were the diagnosis of metatarsus adductus; weight gain; stiffness (edema) to the feet, especially left foot; and even the knee and hip pain, which can affect the feet when bearing weight. The foregoing can lead to impingement of the nerves at the third web space, causing neuroma. Here, the Board finds the June 2013 VHA opinion, indicating that the Veteran's Morton's neuroma requiring surgery in February 2010 is not related to service or to a service-connected fracture of the left metatarsal, to be the most probative evidence of record. The VHA podiatrist reviewed the claims file, was informed of the pertinent facts, fully articulated his opinion, and supported the opinion with a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. Moreover, that opinion is consistent with the earlier opinions of the April 2012 and January 2013 examiners that the Veteran's Morton's neuroma was not related to his service-connected disability, as well as the opinions of February 2008 and August 2008 VA examiners that the Veteran's service-connected fracture of the second left metatarsal was healed and asymptomatic. Significantly, there is no contrary medical opinion of record. To the extent that the Veteran alleges that his Morton's neuroma requiring surgery in February 2010 is caused or aggravated by his service-connected fracture of the second left metatarsal, or is otherwise related to service, he is not competent to provide such an opinion. A determination as to diagnosis or causation of a Morton's neuroma requires specialized training, and is therefore not susceptible of lay opinions on etiology. In sum, the preponderance of the evidence indicates that the Veteran's Morton's neuroma requiring surgery in February 2010 is not a service-connected disability. As the February 2010 surgery was not for a service-connected disability, the Board finds that the Veteran does not meet the basic eligibility requirements regarding treatment for a service-connected disability under the provisions of 38 C.F.R. § 4.30. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a temporary total disability rating based on convalescence for a service-connected disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs