Citation Nr: 18156809 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 12-10 539 DATE: December 11, 2018 ORDER The claim of entitlement to a compensable disability rating for the Veteran's right second digit hammertoe from May 1, 2015, and thereafter, is denied. The claim of entitlement to extension of a temporary total (100 percent) convalescence rating beyond March 31, 2015, pursuant to 38 C.F.R. § 4.30, for right second digit hammertoe is granted. The Veteran’s temporary total (100 percent) convalescence rating is granted to April 30, 2015, but not beyond. REMANDED The claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected bronchitis, is remanded. The claim of entitlement to service connection for hypertension, to include as secondary to service-connected persistent anxiety disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s hammertoe condition is present only in the second digit of the right foot. 2. The Veteran’s post-operative convalescence for her right second hammertoe repair extended beyond March 31, 2015, as ordered by her treating podiatrist. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for right second digit hammertoe from May 1, 2015, and thereafter, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282 (2018). 2. The criteria for the extension of assignment of a temporary total evaluation through April 30, 2015, based on the need for convalescence following the Veteran's right second digit hammertoe surgery performed on January 5, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.30 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from July 1992 to April 1993 and January 2003 to August 2005. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2014, the RO denied service connection for obstructive sleep apnea. In March 2015, the RO granted a temporary total convalescence rating from January 5, 2015, to March 31, 2015, for the right second digit hammertoe disability, and denied service connection for hypertension. This case was previously before the Board in July 2015, July 2017, and January 2018. In July 2015, the case was remanded to provide a statement of the case for the issues on appeal. A statement of the case was provided concerning the Veteran’s claims for sleep apnea and right second digit hammertoe in September 2016. In November 2016, VA provided the Veteran a statement of the case concerning her claim for hypertension. In July 2017, the Board remanded this case so that the Veteran could be scheduled for a hearing. The Veteran was scheduled for a hearing, and the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2017. As a result of the hearing, the Board expanded the claim to include a claim for entitlement to a compensable disability rating for the Veteran’s right second digit hammertoe. See Board Decision and Remand, dated January 2018; Hearing Transcript, dated October 2017. A transcript of the hearing is associated with the claims file. In January 2018, the Board remanded the claim to obtain VA examinations to assess the etiology of the Veteran’s hypertension and obstructive sleep apnea and to assess the severity of the Veteran’s right second digit hammertoe. The Veteran received the appropriate VA examinations in July 2018. The case has been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed below, the Board, unfortunately, finds that another remand is necessary for the issues of service connection for obstructive sleep apnea and service connection for hypertension. Given that this decision grants the Veteran temporary total disability due to convalescence through April 30, 2015, the claim of entitlement to a compensable disability rating for the Veteran’s right second digit hammertoe has been classified as to be considered for a compensable disability rating from May 1, 2015, and thereafter. This change is reflected on the title page. The Board notes that there were additional medical records received after the last supplemental statement of the case, issued in September 2018. However, the relevant evidence obtained was redundant of evidence already in the file, previously considered by the Agency of Original Jurisdiction. Thus, a waiver is not necessary, and this matter is properly before the Board. The RO granted the Veteran a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in a September 2018 rating decision. The Veteran has not asserted disagreement with either this award or the effective date thereof. The issues of entitlement to service connection for obstructive sleep apnea and entitlement to service connection for hypertension, currently on appeal, are REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Entitlement to a compensable disability rating for the Veteran's right second digit hammertoe from May 1, 2015, and thereafter Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson, 12 Vet. App. at 126. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2018). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Hammertoes are governed by, and rated under, Diagnostic Code 5282. 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2018). Pursuant to Diagnostic Code 5282, a noncompensable rating is warranted if single toes are affected. Id. A 10 percent disability rating is warranted if all toes are affected, unilaterally, without claw foot. Id. The Veteran contends entitlement to an increased disability rating for her right second digit hammertoe. Given that the Veteran is in receipt of temporary total disability due to convalescence, a disability rating analysis is limited to May 1, 2015, and thereafter. As outlined below, a preponderance of the evidence is against this claim. In October 2015, the Veteran received a VA examination to determine the severity of her bilateral hammertoes. The Veteran endorsed flares of intense numbness and stabbing, burning pain. She noted that it occurred without activity and was worse at night. The Veteran did not demonstrate pes planus, Morton’s neuroma, or any other foot conditions not already described. The examiner noted that the Veteran demonstrated pain on the examination, but that it did not contribute to functional loss. The Veteran did not require an assistive device and would not have been equally served by an amputation. The examiner noted that the post-surgical changes in the Veteran’s right second toe were stable, and the toe appeared to be in anatomic alignment. No fracture, bone destruction, new bone, or calcaneal spur was noted. Throughout the remainder of the appellate period, the Veteran was seen by podiatry for pain in her right second toe. See VA Treatment records, dated May 2018, August 2017, March 2017, August 2016, May 2016. The Veteran complained of chronic foot pain that was not relieved by medication or analgesic gels. Her gait was non-antalgic. See VA Treatment Records, dated May 2018. The records, specifically, indicated that her affected hammer toe, and any symptoms of the Veteran’s surgery therefore, was limited to the right second toe. In this case, after consideration of the evidence of record, a compensable rating for hammer toes under Diagnostic Code 5282 is not warranted, as the evidence is against finding that the right foot has all hammer toes. 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2018). The Board has considered the application of other diagnostic Codes, particularly Diagnostic Code 5284, which governs and rates “other” foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5824 (2018). However, in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the Court held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'"). The Court explicitly rejected the appellant's argument that to rate under Diagnostic Code 5284, for "foot injuries, other," would not be rating by analogy; the Court held that to do so would ignore the plain meaning of the term "other," and would make the remaining eight foot-related diagnostic codes redundant. Thus, given that the Veteran's hammer toes are contemplated by the rating codes, the Board finds that Diagnostic Code 5284 is not applicable. The Board finds that the Veteran's stiffness of the toes is contemplated under the schedular rating for hammer toes. Additionally, her general painful foot movement is considered under Diagnostic Code 8523, which governs and rates her peripheral neuropathy affecting her right distal deep peroneal nerve associated with the right second hammertoe, and thus cannot be separately rated as it pertains to his hammer toe condition. See 38 C.F.R. §§ 4.14, 4.59 (2018); see also Esteban, 6 Vet. App. at 261- 62; Rating Decision, dated September 2018. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2018) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For these reasons, the Board finds that a preponderance of the evidence is against the appeal for a compensable disability rating for the service-connected right second digit hammertoe and the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7 (2018). 2. Entitlement to extension of a temporary total (100 percent) convalescence rating beyond March 31, 2015, pursuant to 38 C.F.R. 4.30, for right second digit hammertoe A temporary total evaluation of 100 percent will be assigned from the date of hospital admission and continue for a period of one, two, or three 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 rituals, 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 (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (2018). An extension of one, two, or three months of a temporary total evaluation may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b)(1) (2018). Extensions of one to six months beyond the initial six-month temporary total evaluation may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2) (2018). “Convalescence" is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining "recovery" as "the act of regaining or returning toward a normal or healthy state"). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30 (2018). Notations in the medical record as to the claimant's incapacity to work after surgery must be taken into account in the evaluation. Id.; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430. The Veteran contends that she is entitled to an extension of a temporary total evaluation based upon convalescence due to right second digit hammertoe surgery performed on January 5, 2015. The Veteran underwent surgery to repair a right foot second digit hammertoe repair on January 5, 2015. See VA Treatment Records, dated January 2015. In the March 2015 rating decision, currently on appeal, a temporary total evaluation based on surgery necessitating convalescence was assigned for the Veteran's service-connected right foot second digit hammertoe from January 5, 2015, the date of surgery, through March 31, 2015. Following the period of convalescence, a noncompensable evaluation was assigned effective April 1, 2015. As noted, temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following the treatment that led to convalescence. Here, the surgery occurred on January 5, 2015. Thus, the RO essentially granted a temporary total as of the date of the surgery, and pursuant to these provisions, granted a two-month period of convalescence, beyond that. 38 C.F.R. § 4.30(a)(1) (2018). For the reasons stated below, the Board finds that an extension of the total disability rating to a period of three months of convalescence beyond the treatment at issue, for surgery with residuals, is warranted. Specifically, in evidence submitted from the Veteran’s treating podiatrist, the Veteran was not cleared to return to work at her March 2015 follow up visit. In a March 2015 note provided by her treating podiatrist, the Veteran was found to not be cleared for work. See VA Treatment Records, dated March 2015. She was to be re-evaluated in one month. This documentation is consistent with her follow up visits that revealed pain, edema, and ambulation with a slow and limping gait. See VA Treatment Records, dated February 2015, January 2015. The Board notes that the record is silent for evidence that the Veteran was not cleared for work after the March 2015 note. The medical evidence of record after March 2015 revealed a gait without an assistive device, without redness, swelling, and indication of nonhealing wounds. See VA Treatment Records, dated August 2016, May 2016; VA Examination, dated October 2015. As such, any further extension, beyond that awarded in this decision, is not supported by the objective evidence of record. The Board has considered the Veteran’s testimony that she is still unable to return to work due to pain. See Hearing Testimony, dated October 2017. While the Board is sympathetic to the Veteran, and recognizes that her pain may interfere in her ability to work, temporary total disability convalescence is separate from TDIU, and may not go beyond a prescribed period of time. 38 C.F.R. §§ 4.15, 4.16, 4.30 (2018). Moreover, as noted above, the Veteran has been awarded TDIU and has not appealed either the award or the effective date of the award. In light of the above, the Board finds that the evidence is at least in equipoise and shows that the Veteran's January 5, 2015, right hammertoe surgery necessitated at least three months of convalescence following surgery. See 38 C.F.R. §§ 4.30(a), (b)(1) (2018); see Seals, 8 Vet. App. at 296-97; Felden, 11 Vet. App. at 430. Therefore, the Board is affording the Veteran all reasonable doubt and granting an extension of a temporary total rating due to convalescence from January 5, 2015, through April 30, 2015. REASONS FOR REMAND The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected bronchitis, is remanded. The Veteran received VA examinations in February 2015, January 2016, and July 2018 to determine the etiology of the Veteran’s sleep apnea. Although the Board sincerely regrets the delay that this may cause, the Board finds that it is necessary to obtain another VA examination to properly adjudicate this claim. The February 2015 VA examiner opined that it was less likely than not that the Veteran’s obstructive sleep apnea is causally related to the Veteran’s service-connected bronchitis. The rationale was as follows: “sleep apnea has nothing to do with bronchitis. Nor would sleep apnea be aggravated by bronchitis.” However, the Board finds that this opinion is inadequate. The examiner provided merely a conclusory statement, without thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The January 2016 VA examiner provided no etiological opinion as to the Veteran’s obstructive sleep apnea. As such, the Board finds that this examination is not adequate to adjudicate this claim. The Veteran received a VA examination to determine the etiology of her obstructive sleep apnea in July 2018. The VA examiner found that it was less likely as not that the Veteran’s sleep apnea was caused by the Veteran’s military service. The examiner noted that there was no pertinent service treatment documentation pertaining to sleep apnea, and that the Veteran was diagnosed with sleep apnea 12 years after separation from the Army. As there was a significant length between separation and diagnosis, and no pertinent in-service documentation existed concerning the Veteran’s sleep apnea, it was less likely as not due to the Veteran’s military service. The examiner also opined that the Veteran’s obstructive sleep apnea was less likely as not caused by the Veteran’s service-connected bronchitis. The VA examiner supported the negative opinion by noting the different pathophysiological considerations of each condition. However, the July 2018 VA examiner did not consider whether the Veteran’s obstructive sleep apnea was aggravated by her service-connected disabilities. See 38 C.F.R. § 3.310 (2018); see also VA Treatment Records, dated May 2014. As the examiner did not consider the proper legal standard, the Veteran is entitled to a new VA examination upon remand. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected persistent anxiety disorder is remanded. The Veteran received VA examinations to determine the etiology of her hypertension in September 2015 and July 2018. While the Board sincerely regrets the delay that this inevitably may cause, the Board finds that another VA examination is necessary to properly adjudicate this claim. In September 2015, the VA examiner opined that it was less likely than not that the Veteran’s hypertension was proximately due to the Veteran’s service-connected depressive disorder. The examiner asserted that, while there are some causes of secondary hypertension, anxiety is not known to “cause” hypertension. The VA examiner did not address either aggravation by anxiety or the possibility of direct service connection, and, as such, the Board finds that this examination is inadequate for the purpose of adjudicating these claims. See 38 C.F.R. §§ 3.303, 3.310 (2018). In July 2018, the Veteran received another VA examination to determine the etiology of her hypertension. The July 2018 VA examiner opined that it was less likely as not that the Veteran’s hypertension was proximately caused by the Veteran’s military service. Notably, the examiner considered that there were no pertinent service treatment records related to hypertension and the Veteran was diagnosed with hypertension seven years after separation from the Army. The examiner further opined that it was less likely as not that the Veteran’s hypertension was caused by her service-connected disability, stating that a greater than 50 percent certainty could not be established between the Veteran’s hypertension and her service-connected psychological disabilities. The Board finds that the July 2018 VA examination is inadequate for the purposes of adjudicating these claims. Initially, the examiner noted that he could not afford a greater than 50 percent probability that established a causal relationship between the Veteran’s hypertension and her psychiatric disability. However, this is not the proper legal standard. As likely as not indicates equipoise, not a preponderance, of the evidence. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 49. Moreover, the examiner did not consider whether the Veteran’s hypertension was aggravated by the Veteran’s service connected disabilities. See 38 C.F.R. § 3.310 (2018). As such, this VA examination is inadequate for the purposes of adjudicating this claim. In light of the above, the Veteran should be afforded a new VA examination upon remand. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative 2. Schedule the Veteran for an examination to determine the nature and etiology of any current obstructive sleep apnea. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current obstructive sleep apnea is causally or etiologically related to the Veteran’s military service. (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current obstructive sleep apnea is either caused by or permanently aggravated by the Veteran’s service-connected disabilities, including, but not exclusive of, the Veteran’s service-connected bronchitis. The VA examiner’s attention is drawn to the VA treatment record in May 2014, in which the treating provider interpreted the Veteran’s condition as “anemia, asthma, migraines, and snoring associated with moderate obstructive sleep apnea syndrome,” and a specific discussion of this finding is requested. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an examination to determine the nature and etiology of any current hypertension. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hypertension is causally or etiologically related to the Veteran’s military service. (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current hypertension is either caused by or permanently aggravated by the Veteran’s service-connected disabilities, including, but not exclusive of, the Veteran’s service-connected persistent depressive disorder. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel