Citation Nr: 18144555 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-28 912A DATE: October 24, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to a temporary total disability rating based on the need for convalescence following a surgical procedure for the bilateral foot disabilities, is granted. Entitlement to service connection for left tibia stress fracture (claimed as left knee condition), is granted. Entitlement to an evaluation in excess of 10 percent for bilateral stress fracture calcaneus prior to March 20, 2013 is denied. Entitlement to an evaluation of 30 percent from March 20, 2013 for bilateral stress fracture calcaneus, to include a period of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beginning June 26, 2013, is granted. Entitlement to total disability due to individual unemployability, is granted. FINDINGS OF FACT 1. Evidence received since the July 2014 rating decisions is neither cumulative nor redundant of the prior evidence and raises a reasonable possibility of substantiating the Veteran’s claim for convalescence due to bilateral foot surgery. 2. The Veteran was in recovery and convalescence for four months following his surgery. 3. The Veteran’s currently diagnosed right tibia condition is related to his military service. 4. The Veteran’s bilateral stress fracture, calcaneus, prior to March 20, 2013 was manifested by moderate residuals. 5. The Veteran’s bilateral stress fracture, calcaneus, from March 20, 2013 was manifested by severe residuals. 6. The Veteran’s bilateral foot disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the final and binding July 2014 rating decision, the criteria for reopening the claim of entitlement to a temporary total disability evaluation based on the need for convalescence following a surgical procedure for the left bilateral foot disabilities have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for a right tibia condition have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 4.3. 3. The criteria for a temporary convalescent rating for the Veteran’s surgery for bilateral stress fracture calcaneus are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 4. The criteria for a rating of 30 percent for bilateral stress fracture calcaneus from March 20, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Code 5284. 5. The criteria for a rating of in excess of 10 percent for bilateral stress fracture calcaneus prior to March 20, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Code 5284. 6. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 17 to April 24, 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of service connection for pes planus was a raised by the record at the June 2018 Board hearing. As such this issue is referred to the RO for adjudication. During the course of the appeal, the Veteran filed for temporary total disability rating (TTR) claim based on the need for convalescence related to his December 2005 bilateral foot surgery, which the RO denied in a July 2014 rating decision. The Veteran did not file an appeal and the decision became final. In June 2018 the Veteran filed a new claim based on the need for convalescence related to his December 2005 bilateral foot surgery. As the Veteran is presumed to seek the maximum available benefit for a disability, the Board finds that a temporary total disability rating (TTR) claim is part and parcel of his bilateral foot disability increased rating claim. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (finding that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). As such, this issue is reflected on the title page. In a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required “to explain what ‘new and material evidence’ means.” Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran was provided this level of notice. Although 38 C.F.R. § 20.101 (d) requires the Board to provide notice when it raises a question as to a potential jurisdictional defect on its own initiative, the Board finds that, given the favorable outcome of this decision (finding new and material evidence to reopen the claim), the Veteran has suffered no prejudice that would warrant a remand (at least not prior to first reopening these claims). See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the Board will proceed to adjudicating this appeal. The Board also notes that during the June 2018 hearing, the Veteran indicated that he was unemployed due to his service-connected disabilities. As the Veteran is challenging the disability ratings assigned for his disabilities, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, this issue is reflected on the title page. New and Material Evidence to Reopen Claims After a Veteran submits a timely NOD, the AOJ will issue an SOC. See 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Subsequently, the Veteran then has 60 days to perfect an appeal by submitting a Substantive Appeal on a VA Form 9 or other correspondence identifying the issues being appealed and any arguments supporting the appeal. Id. Here, as noted above, the Veteran neither perfected his initial appeal by timely filing a Substantive Appeal in response to the July 2006 SOC, nor did he file an NOD in response to the June 2006 rating decision. As a result, those decisions are final and binding determinations based on the evidence then of record. See 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.302, 20.1103. VA must reopen a finally adjudicated claim when new and material evidence is submitted regarding the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence that was not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of reopening a claim, the evidence is presumed credible unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the July 2014 rating decision the Veteran failed to submit any information regarding his bilateral foot surgery. Therefore, the RO denied entitlement to TTR. Since that time, the Veteran has submitted treatment notes from his surgery as well as a July 2015 treatment note that the Veteran was recovering and convalescent for four months following his surgery. See July 2015 Medical Treatment Record. The Board finds there is indeed new and material evidence in this instance, so cause to reopen this claim and review its former disposition. Here, the Board finds that new and material evidence has been submitted to reopen the previously-denied claim. Specifically, the Veteran submitted evidence of surgery for his bilateral foot disability. Accordingly, his claim of entitlement to a temporary total disability evaluation based on the need for convalescence following bilateral foot disabilities surgery is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for left tibia stress fracture (claimed as left knee condition). The Veteran contends that his current diagnosed left knee condition is a result of service. The medical and lay evidence includes VA and private treatment records, and the Veteran’s own statements, including his June 2018 hearing testimony, which show that the Veteran’s symptoms remained relatively constant throughout the appeal period. The Veteran’s service treatment records show that the Veteran suffered a left tibia stress fracture while on active duty. Post service treatment records also show continued complaints and treatment for his left knee disability. The Veteran was afforded a VA examination in August 2012 in connection with this claim. The examiner reported the Veteran’s left knee flexion was to 140 degrees with normal extension and no objective evidence of pain on motion, instability, or ankylosis. The examiner stated the left knee x-rays were normal and there were no signs of early degenerative change present. The examiner confirmed the Veteran had a diagnosis of left tibia stress fracture. The examiner also opined that the Veteran’s left tibia stress fracture is due to military service. In consideration of the evidence of record, the Board finds that the evidence of record supports a finding for the Veteran’s claim for service connection for a left knee disability. The Board finds the August 2012 VA opinion to be adequate and highly probative, as the physician’s opinion is based on an examination of the Veteran and review of his records. Given that the Veteran has a current diagnosis of a left knee disability, an in-service injury to his left knee, and the only probative medical opinion of record weighs in favor of the claim, service connection is warranted. Accordingly, the Board finds that service connection for left knee disability is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 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, 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. Total ratings will be assigned if treatment of a service-connected disability resulted in, inter alia, (1) surgery necessitating at least one month of convalescence, or (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds or the necessity of house for house confinement or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). 38 C.F.R. §§ 4.30 (a). 2. Entitlement to a rating in excess of 10 percent disabling for bilateral stress fracture calcaneus, to include a request for TTR based on convalescence following a surgical procedure for his bilateral foot disabilities. The veteran contends that his service connected bilateral foot disabilities should be rated in excess of 10 percent disabling. The Veteran’s bilateral heel fractures are rated under Diagnostic Code 5284 which provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. 38 C.F.R. § 4.71a. At his VA examination in August 2012, the examiner found that Veteran’s bilateral foot condition was directly related to service and was moderate in severity. The examiner noted that imaging studies showed no abnormal findings. Additional testing showed no spurring. The examiner noted mineralization was appropriate for gender and age. The joint spaces within the feet were preserved with no fractures, dislocations, calcaneal spurs, early degenerative change, abnormal soft tissue calcifications, or swelling. Private and VA medical treatment records from 2012 to present show that the Veteran has continued to be treated for bilateral calcaneal fracture. In a March 2013 letter from Dr. B. he stated, “the Veteran also has a lot of hypersensitivity and swelling in his heels and severe pain when he tries to go up on his toes and has definite decreased range of motion to dorsiflexion, plantar flexion, inversion and eversion about his ankles bilaterally.” He also noted that x-rays showed definite traumatic stress fractures. In July 2015 the Veteran submitted treatment notes regarding his June 2013 surgery. The records indicate the Veteran was recovering and convalescent for approximately four months following his foot surgery. A VA examination in July 2018 showed that the Veteran’s left foot stress fracture calcaneus was moderately severe and his right stress fracture calcaneus was severe. The examiner also found that the foot conditions were chronically compromising weight bearing. He also noted bilateral foot surgery for the condition resulting in posttraumatic arthritis. The examiner note pain on motion, pain on weight-bearing, swelling and disturbance of locomotion. During his June 2018 Board hearing the Veteran testified that his heel condition has worsened since he was originally evaluated. He testified that he can only walk for about a couple hundred yards before his feet start hurting. He stated he can stand for about 30 minutes, and then he must sit down because he cannot keep pressure on them for too long. He explained if he does walk, he walks with shoes on because the right foot has a fusion in it and there are two rods that go from his heel to the top where it crooks. He stated every time he takes a step, he feels the bolts and he cannot put full pressure down on that foot. The Board notes in this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his bilateral foot disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on daily activities. After considering the medical findings and lay contentions of record, the Board finds the evidence reveals the veteran’s bilateral foot impairment can be characterized as moderate prior to March 20, 2013 and severe from March 20, 2013. The disability in the Veteran’s bilateral heal prior to March 20, 2013 showed no abnormal findings on x-ray. There was no spurring, mineralization was appropriate for gender and age, joint spaces within the feet were preserved with no fractures, dislocations, calcaneal spurs, early degenerative change, abnormal soft tissue calcifications, or swelling. Additionally, the August 2012 VA examiner noted the Veteran’s disability to be moderate in nature. The evidence shows that the disability in the Veteran’s bilateral foot disability from March 20, 2013 caused severe pain which affected his ability to stand or walk for short periods, hypersensitivity and swelling, and decreased range of motion to dorsiflexion, plantar flexion and eventually required surgery in June 2013. This supports a finding that a 10 percent rating prior to March 20, 2010 and a 30 percent rating from March 20, 2013, the date the Veteran’s symptoms were show to be severe in nature, under Diagnostic Code 5284 is warranted. 38 C.F.R. § 4.71a. The Board notes that the July 2018 VA examiner found the Veteran’s left stress fracture only resulted in moderately severe symptoms; however, the Board find the evidence of record shows the Veteran’s symptoms are severe bilaterally. The Board has considered other provisions which might provide for a higher evaluation with respect to the issue on appeal, including 38 C.F.R. §§ 4.40 and 4.45, as they relate to pain and any resulting functional impairment due to pain. See DeLuca, supra. However, DC 5284 does not evaluate the disability with respect to range of motion; sections 4.40 and 4.45, with respect to pain on motion, are not applicable. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). There are no other diagnostic codes which would provide higher or separate ratings for the Veteran’s left foot disability. The Veteran is not service-connected for, and the record does not reflect evidence of weak foot, claw foot, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones; so as to warrant higher or separate ratings under DC 5277, 5278, 5281, 5282, or 5283 respectively. The Veteran also asserts he is entitled to a temporary total rating for convalescence as a result of a June 2013 bilateral foot surgery. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. 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 cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); 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). For purpose of applying 38 C.F.R. § 4.30 (a)(1), “convalescence” indicates that “a surgical procedure had been performed that would require at least one month for the Veteran to return to a healthy state.” Felden v. West, 11 Vet. App. 427, 430 (1998). There is no express requirement of home confinement to meet the definition of convalescence. The Court has held that notations in the medical record as to the Veteran’s incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). The evidence shows that the Veteran underwent an open reduction and internal fixation of the bilateral calcaneus surgery in June 2013. In a June 2013 post-operation treatment note, the private physician stated that the Veteran was recovering and convalescent for four months after surgery. The Veteran also testified he was unable to work after his surgery. Accordingly, the Board finds that the Veteran is entitled to a temporary total evaluation from June 26, 2013 to September 20, 2013 due to the June 2013 surgery on his service-connected bilateral foot disability requiring convalescence. After a review of the evidence, the Board finds that a rating of 10 percent prior to March 20, 2013 and 30 percent thereafter under 38 C.F.R. § 4.71a Diagnostic Code 5284 is warranted for the Veteran’s bilateral stress fracture calcaneus, except from June 26, 2013 to September 30, 2013, where the Veteran has been awarded temporary total disability rating based on periods of hospitalization and convalescence for his bilateral stress fracture calcaneus in accordance with 38 C.F.R. § 4.30.   3. Entitlement to total disability due to individual unemployability. As discussed above, the Board increased the Veteran’s ratings to 30 percent, each, for the Veteran's right and left foot disabilities from March 20, 2013. As a result, the Veteran’s service connected disabilities are 60 percent, combined (with application of the bilateral factor), and he now meets the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16 (a) from March 30, 2013. After carefully reviewing the evidence of record, the Board finds that the Veteran is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. Although the Veteran briefly worked a as a construction supervisor in 2017 and a cab driver he was unable to continue and is not currently working. The Board notes that the Veteran’s only occupation has been in construction which he is no longer able to perform. The record does not show any advance education or vocational training. Moreover, the current medical evidence reveals that, even if the Veteran completed a program that would prepare him to obtain a sedentary job, he would be unlikely to maintain that employment. The Veteran has never performed sedentary employment. There is no evidence that his education and occupational experience qualify him for sedentary employment which does not require some standing or ambulating. In a March 2013 the Veteran submitted a letter from a private physician, Dr. M.B. The examiner found, taking into account the Veteran’s condition and symptoms, medical history, history of the injury and the resultant care and treatment, he found that the Veteran was totally disabled. He noted that with the arthritic and degenerative changes in the feet and ankles as well as the left knee and with the severe back problems that he has in the entire lumbar region he could not do any type of gainful employment. The Board does note that the examiner included a condition that is not service connected in his analysis, therefore the probative value is limited. The July 2018 VA examiner found that the Veteran’s foot disabilities would affect any type of employment due to pain with standing or ambulation. During his June 2018 the Veteran testified that he can no longer work because he is unable to stand or walk for even short periods due to his foot disabilities. He stated that he tried to work as a construction supervisor but was unable to continue working because he was unable stand or walk as required. He also stated that he tried to drive a cab but was not able to continue working. The Board concludes that the evidence is at least in equipoise to warrant a finding that the Veteran’s service-connected disabilities preclude him from following substantially gainful employment of any type for which he is prepared. Having resolved doubt in the Veteran’s favor, TDIU on a schedular basis is granted. The Board will allow the AOJ to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs