Citation Nr: 1336338 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-04 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a temporary total rating for the Veteran's service-connected right foot neuroma metatarsalgia, status post traumatic fracture, for convalescence following surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1997 to November 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011 the Board remanded this claim so a hearing could be scheduled before a Veterans Law Judge (VLJ) of the Board. But in June 2012 the Veteran withdrew her hearing request and has not since asked to reschedule the proceeding. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2013). The Board therefore is going ahead and deciding her appeal. FINDINGS OF FACT 1. As relevant to this appeal, service connection is in effect for right foot neuroma metatarsalgia, status post traumatic fracture, which has been rated as 20-percent disabling effectively since November 16, 1999. 2. In September 2008 the Veteran had surgery on her right medial malleolus (i.e., ankle) following a motor vehicle accident; her right foot neuroma metatarsalgia was not however involved or treated. CONCLUSION OF LAW The criteria are not met for a temporary 100 percent convalescent rating for the Veteran's right foot neuroma metatarsalgia, status post traumatic fracture. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant 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) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist her in obtaining; and, (3) that she is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements were met in this case by way of a letter sent to the Veteran in October 2008, prior to initially adjudicating her claim in December 2008, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) (indicating VCAA notice ideally should precede the initial adjudication of the claim). The letter explained the type of information and evidence needed to substantiate this claim and the division of responsibilities between her and VA in obtaining this supporting evidence. She has not made any pleading or allegation that she did not receive the required notice concerning this claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court held that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, showing how it was unduly prejudicial, meaning outcome determinative of her claim). As concerning the duty to assist with this claim, the RO obtained the Veteran's updated treatment records from VA facilities, and she submitted copies of her private treatment records. This evidence includes the records of her surgery at issue. She has not identified any other outstanding records that she wanted VA to obtain or that she believed were relevant to this claim that have not been obtained and that are obtainable. The duty to assist also may include providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2013). The Veteran was not provided a VA compensation examination, but the Board finds that one is not required. The threshold issue in her claim is whether there was treatment of a service-connected disability. None of the evidence suggests that her service-connected disability was treated by the surgery in question she had in September 2008. And as her service-connected disability was not treated, a medical opinion setting forth the effects of the treatment or providing an estimated length of convalescence is not needed to decide her claim. There also was compliance, certainly substantial compliance, with the Board's November 2011 remand directive to schedule a hearing, which the Veteran ultimately canceled. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, which is obtainable, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Standard of Review In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to her. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against it, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case it is denied. Id. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible," or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has personal knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that her schizophrenia had aggravated her diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As the Federal Circuit Court has observed, lay evidence must "demonstrate some competence." See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, 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 Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly 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). Entitlement to a Temporary Total Rating The Veteran asserts that she is entitled to a temporary total rating for the period from August 2008 to August 2009 because of surgery she had on her right ankle following a motor vehicle accident. But as the surgery did not involve treatment of a service-connected disability, including especially her right foot disability, her claim must be denied. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. This rating will be assigned under 38 C.F.R. § 4.29 when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. Whereas a total rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; 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 case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. This temporary total rating will continue for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, and an extension of 1, 2, or 3 months beyond the initial 3 months may be made. 38 C.F.R. § 4.30(b). In March 1999, while in the military, the Veteran was diagnosed with a crush injury to her right foot, with sequelae (residuals) of metatarsalgia and pain, healed fracture, symptomatic right foot. The end of her 4th metatarsal on her right foot had been fractured. In May 1999, a Medical Evaluation Board (MEB) recommended that she be separated from service due to intermetatarsal neuroma, as she was no longer able to perform her duties. She resultantly was discharged in November 1999. Service connection subsequently was granted for the right foot neuroma metatarsalgia, status post traumatic fracture. It has been rated as 20-percent disabling effectively since November 16, 1999, the day after she separated from service. In August 2008, she was involved in a motor vehicle accident, which caused injuries to both of her lower extremities. Specifically, an "Attending Physician's Report," dated September 26, 2008, indicates she fractured her right ankle, her left mid-foot, including the 2nd, 3rd, and 4th metatarsals, and her left cuboid/navicular bones. He estimated that she would be disabled from August 13, 2008, to August 13, 2009, at the least. On September 3, 2008, the Veteran underwent a right foot open reduction internal fixation (ORIF) on her right ankle fracture. She also had a left foot ORIF, due to fractured left metatarsals and a Lewis Frank's injury. Pertinently, the operation report details that an incision was made to the right medial malleolus. A mini-c-arm was used to align the medial malleolus and reduce the fracture in that area. A 6.5 mm screw was placed into the medial malleolus to hold it in position, and the incision was then closed. Her pre-operative and post-operative diagnoses, in regards to her right foot, were right medial malleolar fracture. In a September 10, 2008, statement she asserted that her service-connected right foot disability had required surgery. In an April 2009 follow-up to her surgery, her right ankle, status post ORIF due to fracture, was healing as expected. In a November 2009 statement, her husband explained that she had been diagnosed with reflex sympathetic dystrophy (RSD), which had spread to her left foot after the August 2008 motor vehicle accident. He indicated that she was in a great deal of pain. In a January 2010 statement, she herself asserted that her right foot is painful, mainly because of her RSD, and that she did not think this symptom was considered in the RO's decision denying her claim. But based on this collective body of evidence, the Board finds that a temporary total rating is not warranted under either § 4.29 or § 4.30. The Veteran's service-connected right foot neuroma metatarsalgia was not treated during the September 2008 surgery; rather, her right ankle - specifically, her right medial malleolus - was treated because it had been fractured. Her left foot metatarsals were operated on, but her left foot is not service connected. Metatarsalgia refers to pain and tenderness in the metatarsal region, which is the area between the tarsus and the toes. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1162 (31st ed. 2007). On the other hand, the medial malleolus is the protuberance on the medial side of the distal end of the tibia. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1114 (31st ed. 2007). The evidence does not suggest that the Veteran's right metatarsal region was operated on, only instead her right medial malleolus, which is not service connected, including part and parcel of the disability that is. The Veteran's statement that her service-connected right foot disability required surgery is not probative. The evidence shows that her right ankle was operated on, not her right metatarsal region of her foot, thus her statement is not supported by the contemporaneous medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a Veteran's lay report of a contemporaneous diagnosis is competent, but the Board also must determine whether the lay testimony is additionally credible as to, in turn, ultimately have probative value or weight). The statements regarding her pain are irrelevant to the claim, and so are not probative either. As explained, a temporary total rating pursuant to 38 C.F.R. §§ 4.29 or 4.30 is awarded when the treatment of a service-connected disability results in the need for extended hospital stay or convalescence. Her pain, though unfortunate, is not pertinent to the inquiry. Because the September 2008 operation did not treat any of her service-connected disabilities, and particularly the one affecting her right foot, her claim must be denied. The preponderance of the evidence is against her claim, and in this circumstance the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, this claim must be denied. ORDER The claim of entitlement to a temporary total rating for the Veteran's service-connected right foot neuroma metatarsalgia, status post traumatic fracture, for convalescence following surgery is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs