Citation Nr: 20006853 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 19-25 077 DATE: January 29, 2020 ORDER Service connection for left foot Morton’s neuroma as secondary to the service-connected right knee disability is granted. Entitlement to a temporary total disability rating based on the need for convalescence following surgical treatment of a service-connected right knee disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee instability prior to March 29, 2019, and in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for pain with limitation of motion of the right knee is remanded. FINDINGS OF FACT 1. The probative evidence is in equipoise as to whether the Veteran’s left foot Morton’s neuroma is at least in part secondary to his service-connected right knee disability. 2. The Veteran had surgery on his service-connected right knee disability at a private facility on March 30, 2015. 3. The Veteran’s claim for a temporary total disability rating based on the need for convalescence following surgical treatment of a service-connected right knee disability was not timely filed. CONCLUSIONS OF LAW 1. With resolution of any doubt in the Veteran’s favor, the criteria to establish service connection for left foot Morton’s neuroma as secondary to the service-connected right knee disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310. (2018). 2. The criteria for entitlement to a temporary total disability rating based on the need for convalescence following surgical treatment of a service-connected right knee disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400 (b)(1)(ii)(B), 4.30 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to September 1995. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As it pertains to the right knee disability, in August 2016, the Veteran filed a claim for an increased rating for his right knee disability and requested a temporary total period of convalescence for his right knee surgery. In the December 2016 rating decision, the RO denied the claim for “entitlement to a temporary total evaluation because of treatment for a service-connected or other condition subject to compensation. The RO did not list the claim of entitlement to an increased rating for the right knee disability on the title page of the rating decision but did address it in the body of the rating decision in addition to the request for a temporary total rating due to treatment requiring convalescence. See pg. 4 of December 2016 rating decision. In his February 2017 Notice of Disagreement, the Veteran expressed disagreement with the rating assigned for the right knee disability and the denial of a temporary total rating for a period of convalescence. The June 2019 Statement of the Case readjudicated the issue of whether a period of convalescence was warranted but did not readjudicate the Veteran’s claim for an increased disability rating for his right knee disability(ies). As such, the Veteran’s claim for an increased disability rating for the right knee disabilities are included on the title page and are remanded below for such readjudication. The Veteran and his spouse presented testimony in March 2019 before a Decision Review Officer. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for Left Foot Morton’s Neuroma The Veteran maintains that he has a left foot Morton’s neuroma is either caused or aggravated by his service-connected right knee disabilities. The medical evidence shows a current diagnosis of a Morton neuroma on the left foot. Moreover, service connection is already in effect for a right knee strain with instability (Diagnostic Code 5257), and right knee painful motion (Diagnostic Code 5260). Upon review of all the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s left foot Morton’s neuroma is at least in part secondary to his service-connected right knee disabilities. Weighing against the Veteran’s claim is an October 2016 VA medical opinion. The examiner opined that the Veteran’s left foot Morton’s neuroma was not due to or aggravated by his service-connected right knee disabilities. In support of this opinion, the examiner noted that there was no compelling evidence in the medical literature to imply a cause and effect relationship between Morton’s neuroma and the Veteran’s service-connected right knee condition. The examiner explained that x-rays performed in August 2011 showed that the Veteran had hammertoe deformities to the second, third, and fourth digits of the left foot along with degenerative arthritis. According to medical literature, certain conditions that develop over time, such as bunions or hammertoes, are associated with Morton’s neuroma because it causes instability around the toe joints. In addition, a podiatrist note dated in May 2013 also indicated that the Veteran had a rotational deformity to his left 4th toe which caused his left 3rd toe to be displaced resulting in pressure and pain to the 3rd metatarsal head of the left foot, which was in close proximity to the location of the nodule (Morton’s neuroma). Based on these findings, the examiner opined that the Veteran’s Morton’s neuroma was neither proximately due to or aggravated by the service-connected right knee disability. Weighing in favor of the claim, is a private medical opinion from K.M, D.O, identified as a board-certified family physician, dated in February 2019. Dr. K.M. indicated that he had reviewed the Veteran’s medical records, lay statements, and the VA claims file. Dr. K.M. indicated that the Veteran had various foot disorders, including Morton’s neuroma, and noted that overcompensation of his feet “due to his service connected right knee conditions” could cause his claimed conditions and lead to daily pain and limitation of activity. According to Dr. K.M, the Veteran’s medical records document an altered gait, decreased stance time on the right lower extremity, weight shifting, and ambulation with a limp. Dr. K.M. stated that the Veteran’s knee conditions “directly lead” to an overload of stress on his feet, changing the way the Veteran walked. It was further explained that, walking on the forefoot tightened the calf muscles, directly loading the plantar fascia and causing a pulling on the heel. Based on these findings, Dr. K.M. opined that the Veteran’s foot conditions, which included Morton’s neuroma, were “more likely than not” secondary to his service-connected right knee disability. It is noted that Dr. K.M.’s opinion and accompanying rationale appears to involve the right knee and additional stress to the plantar fascia and the Veteran has been awarded service connection plantar fasciitis as secondary to his right knee disabilities. In sum, the Board finds that the evidence of record, to specifically include the October 2016 VA examiner’s opinion and the opinion from Dr. K.M., are of relatively equal probative weight. The examiner and Dr. K.M. were both familiar with the Veteran’s medical history, both physicians reviewed the claims file, discussed the relevant medical evidence of record, and provided thorough rationales for the opinions rendered. The evidence also includes a September 2014 Foot Disability Benefits Questionnaire from Dr. B. This report indicated that the Veteran’s Morton’s neuroma “may have been exacerbated” due to increased pressure on the forefoot from a previous knee injury. It is noted that this opinion appears somewhat consistent with Dr. Dr. K.M.’s rationale in the February 2019 medical opinion. Overall, the Board concludes that the evidence is at least in equipoise as to whether the Veteran’s left foot Morton’s neuroma is, at least in part, secondary to his service-connected right knee disabilities. For these reasons, service connection is warranted. 38 C.F.R. § 3.102. Temporary Total Disability Rating Based on the Need for Convalescence The Board finds that the Veteran’s claim of entitlement to a temporary total disability rating based on the need for convalescence following surgical treatment of a service-connected right knee disability must be denied as a matter of law. The Board notes initially that a temporary total disability rating may be assigned under 38 C.F.R. § 4.30 when a convalescent period of 1, 2, or 3 months is required for treatment of a service-connected disability following a hospital discharge. See 38 C.F.R. § 4.30 (2018). In order for a temporary total disability rating claim to be considered timely filed, it must be filed by a Veteran within 1 year of the date of surgery unless his or her disability “was so incapacitating that it prevented him or her from filing” the claim for 30 days immediately following the date on which he or she became permanently and totally disabled due to surgery in which case the effective date for an award of a temporary total disability rating will be the date of receipt of the claim. See also 38 C.F.R. § 3.400 (b)(1)(ii)(B) (2018). The Board finds that the Veteran’s temporary total disability rating claim was untimely filed. The Veteran’s temporary total disability rating claim was not received by VA until August 2016, or more than 1 year after he had surgery in March 2015 on his right knee. The evidence does not indicate that the Veteran’s service-connected right knee disability was so incapacitating following his surgery in March 2015, that he was prevented from filing his temporary total disability rating claim for the first 30 days following surgery as is required to waive the normal requirement for a timely filed claim (within 1 year from the date of surgery). Id. According to an order information statement, the Veteran’s physician noted that the Veteran had right knee arthroscopic surgery on March 30, 2015. He work from home for one month. He attended office and physical therapy visits. The Board finds that the evidence does not demonstrate that the Veteran’s service-connected right knee disability was so incapacitating following surgery in March 2015 that the requirement of a timely filed total disability rating claim (within 1 year of surgical treatment of a service-connected disability necessitating convalescence) should be waived in this appeal. The Veteran has not identified or submitted any evidence demonstrating that his temporary total disability rating claim was not untimely filed. Accordingly, the Veteran’s claim of entitlement to a temporary total disability rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). An analysis of the Veteran’s entitlement to a temporary total disability rating is not required in this case because he has not met the threshold requirement of filing his claim within 1 year of surgical treatment of a service-connected disability necessitating convalescence. The Board recognizes the Veteran’s testimony before the DRO that he was unaware that he could even file for a claim for convalescence; however, the law is dispositive of this claim and the Board is bound by the law. The Board concludes that the Veteran's claim of entitlement to a temporary total disability rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND As discussed above, the Veteran’s February 2017 Notice of Disagreement indicated that he was appealing the ratings assigned for his right knee disabilities. The June 2019 Statement of the Case did not adjudicate the increased rating claims. Accordingly, a Statement of the Case must be sent to the Veteran on these issues. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: (Continued on the next page)   Issue a Statement of the Case on the issues of (1) entitlement to a rating in excess of 10 percent for right knee instability prior to March 29, 2019, and in excess of 20 percent thereafter; and (2) entitlement to a rating in excess of 10 percent for pain with limitation of motion of the right knee. Only if the Veteran perfects an appeal should the claims be certified to the Board. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.