Citation Nr: 21001007 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-08 359 DATE: January 6, 2021 ORDER Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for convalescence following left knee surgery on October 17, 2014 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for retropatellar bursitis, status post bursectomy, left knee is remanded. Entitlement to service connection for a lumbar spine condition (claimed as back condition) is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for sinusitis is remanded. FINDING OF FACT The Veteran’s October 17, 2014 left knee surgery required physical therapy after the surgery but there was no evidence any severe postoperative residuals and the left knee was able to bear weight, was not in a cast or otherwise immobilized, did not require the continuous use of crutches or a wheelchair, and though he was reporting having difficulty at his work, it was less than a month after his surgery. CONCLUSION OF LAW The criteria for a temporary total rating based on surgery for the left knee necessitating convalescence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from September 1981 to October 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2014, August 2016 and August 2017 ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2020 virtual Board hearing. A transcript of that hearing has been associated with the claims file. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for convalescence following left knee surgery on October 17, 2014. The Veteran seeks a temporary total evaluation for the period of convalescence following the surgery he underwent on October 17, 2014. Pursuant to 38 C.F.R. § 4.30, a veteran may receive a total disability rating (100 percent) when it is established by report at hospital discharge or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section, effective the date of hospital admission or outpatient treatment. See 38 C.F.R. § 4.30 (emphasis added). Total ratings will be assigned "if treatment of a service-connected disability" resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body 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. See id. § 4.30(a). The Veteran testified at the June 2020 Board hearing that after his October 17, 2014 left knee surgery, he was unable to work for a month in order to recover and achieve a "certain range of motion". He stated that during that time he was on crutches and could not put weight on the knee. He further stated that he had to use ice and elevation to keep the swelling down. An October 17, 2014 VA operation report notes the Veteran underwent left knee arthroscopically assisted partial medial meniscectomy, excision of pathologic plica and chondroplasty medial femoral condyle. Postoperative diagnoses of left knee medial meniscus tear, early osteoarthritis and pathologic plica and chondromalacia involving the medial and lateral compartments were noted. It was then noted that, prior to the procedures, the Veteran had a history of 2 previous left knee surgeries, including a partial medial meniscectomy and excision of an anterior bursa. It was noted that the Veteran had consistent painful catching of the left knee along the medial compartment, but was not giving way or locking. An October 22, 2014 VA treatment record notes "[n]o brace, [Veteran] is allowed weight bearing on [left] leg." An October 28, 2014 VA treatment record notes the Veteran was status post left knee scope with partial meniscectomy and plica removal. The Veteran reported that his job requires frequent kneeling and crawling on his knees and that "he has had difficulty with squatting and sitting for prolonged periods of time since [the] surgical procedure." The Veteran was noted as being "[a]mbulatory independent [weight bearing as tolerated] without assist device," though it was noted that his gait was mildly antalgic. A November 6, 2014 VA treatment record notes the Veteran was seen for continuing physical therapy, particularly with bending and squatting. It was noted that the Veteran performed on the Nustep for 10 minutes as well as 2 sets of leg presses with repetitions at 55 pounds. A November 17, 2014 VA treatment record notes the Veteran reported that he was returning to work the next day. A December 8, 2014 VA treatment record notes the Veteran reported having difficulty with work and squatting, with it being further noted that he "[h]as to do a lot of that over 8 [hours]." A December 18, 2014 VA treatment record notes the Veteran was continuing physical therapy which was noted as resulting in "improved ability to squat and perform work duties." A January 28, 2015 VA treatment record notes the Veteran had returned to full time work activities. Based on a review of the medical evidence of record, it is clear that the Veteran’s left knee required physical therapy after the surgery, but was able to bear weight, was not in a cast or otherwise immobilized, did not require the continuous use of crutches or a wheelchair, and though he was reporting having difficulty at his work, it was less than a month after his surgery. Further, there is no evidence that the Veteran suffered any severe postoperative residuals. Based on the above, the Board finds that entitlement to a temporary total rating requiring convalescence (under 38 C.F.R. § 4.30) is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for retropatellar bursitis, status post bursectomy, left knee is remanded. The Veteran testified at the June 2020 that his left knee has worsened since his last VA examination, which the Board notes was in July 2016. As such, the need for a thorough and contemporaneous evaluation, as well as the age of the last examination, weigh in favor of remand for a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also, Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also 38 C.F.R. § 3.326 (a). 2. Entitlement to service connection for a lumbar spine condition is remanded. On July 31, 2015, VA received a letter from Premier Physical & Occupational Therapy which noted that the Veteran was under their care from March 26, 2015 through May 22, 2015 for treatment of his knee, low back and foot pain. It was then noted that the Veteran reported a "long history of knee pain related to meniscus degeneration and due to the nature of his work requirements ([Veteran] works as mailman and is on his feet loading the knee joint throughout the day) remains irritable and has altered his gait pattern." It was then noted that they "can't determine exactly what the cause of the [Veteran's] low back pain is, the compensation injury pattern can typically develop from a prolonged altered gait pattern that abnormally stresses the soft tissue structures of the low back." The Board finds that this opinion is speculative and does not establish whether it is at least as likely as not that the Veteran's back condition was secondary to his service-connected left knee. Bostain v. West, 11 Vet. App. 124; Obert v. Brown, 5 Vet. App. 30 (1993); Warren v. Brown, 6 Vet. App. 4 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a June 30, 2020 letter, Dr. D. P. Porter, a chiropractor, stated that the Veteran first presented to their office in 1997 for complications of chronic low back and sacroiliac joint pain "acquired more likely than not from working in the Coast Guard when the pain began." It was then noted that he suffered a left knee injury in 1992 while in the Coast Guard "which creates low back muscular compensation exacerbating the low back pain." Here, the Board notes that the Veteran testified at the June 2020 Board hearing that his back problem began in 1996, which is after he left service. As such, the Board finds that this opinion is based on a false premise, and as such, accords it no probative weight. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). In an October 7, 2020 private medical opinion, Dr. J. M. Dauphin stated that the Veteran has low back pain related to his chronic liming and abnormal gait pattern as a result of his left knee problems. He then opined that the Veteran's "back problems are the result of chronic limping" and that "he has developed obesity during his service and this is contributing to the joint problems." Here, the Board notes that there are numerous VA treatment records which indicate the Veteran had a normal gait at the time of the Veteran’s claimed onset of his back problem. Further, the Veteran’s service treatment records do not contain a finding that the Veteran was considered obese while on active duty. As such, the Board finds this opinion is of no probative value. Here, the Board finds that a remand for a VA examination is required to determine the etiology of the Veteran’s back condition. 3. Entitlement to service connection for a right hip condition is remanded. The Veteran was afforded a VA hip and thigh conditions examination in October 2015. It was noted that the Veteran does not have a current diagnosis associated with any claimed right hip condition. The Veteran reported having bursitis/pain in his right hip which he described as dull and aching and is aggravated with activity. He asserted that the pain is due to overcompensating for his left knee. It was noted that there is no objective evidence for a specific condition related to the hip. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Veteran testified at the June 2020 Board hearing that his right hip problem "probably began in '96, less than a year out of service," and that he's been going to the chiropractor regularly since 1997. Based on the above, the Board finds that a remand for a new VA examination is required. 4. Entitlement to service connection for a right foot condition is remanded. The Veteran was afforded a VA foot conditions examination in April 2016. The Veteran reported experiencing right foot pain and a diagnosis of plantar fasciitis was noted. It was noted that the Veteran has worked as a maintenance person for the Postal Service since 1997 which involves plumbing, carpentry and building repairs. It was further noted that he is obese with a BMI of 34.9. The VA examiner opined that the Veteran's right foot condition is less likely than not proximately due to his left knee condition, noting that the Veteran has obesity and occupation related risk factors whereas his left knee condition does not cause plantar fasciitis. The Board acknowledges that obesity cannot be service connected. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, it can act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. VAOPGCPREC 1-2017 (Jan. 6, 2017). For obesity to act in this manner, it must be established that a service-connected disability caused the Veteran to become obese or aggravated his obesity, that obesity or the aggravation of obesity was a substantial factor in causing the current disability, and that the current disability would not have occurred but for the obesity or aggravation of the obesity. Id.; Walsh v. Wilkie, 32 Vet. App. 300, 304-307 (2020). The Veteran testified at the June 2020 Board hearing that when his left knee pain worsens his right foot gets worse. He then stated that Dr. Lewis, Dr. Darnell and his chiropractor have told him that he was "compensating and overloading [his] right side." Here, the Board finds that a remand to obtain private treatment records and then to obtain a new VA examination is required. 5. Entitlement to service connection for sinusitis is remanded. The Veteran testified at the June 2020 Board hearing that during service he began "getting a lot of sinus pressure", stating that it continued and that he "can't go more than a week or two" without experiencing symptoms. He then stated that he goes to the doctor for this 3 to 4 times per year. He further stated that the symptoms he experiences now are very similar to those he experienced while in the service. As the Veteran’s assertions regarding continuity of symptoms were not considered in the May 2019 VA examination, the Board finds that a remand for a new VA examination is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Doctor Lewis. Make two requests for the authorized records from Doctor Lewis, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a VA Form 21-4142 for Doctor Roja. Make two requests for the authorized records from Doctor Roja, unless it is clear after the first request that a second request would be futile. 3. Ask the Veteran to complete a VA Form 21-4142 for Doctor Darnell. Make two requests for the authorized records from Doctor Darnell, unless it is clear after the first request that a second request would be futile. Left Knee 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected retropatellar bursitis, status post bursectomy, left knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Lumbar Spine 5. Schedule the Veteran for a VA examination for his lumbar spine condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s lumbar spine condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s lumbar spine condition at least as likely as not proximately due to his service-connected left knee? Is the Veteran’s lumbar spine condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected left knee? If the examiner determines that the Veteran’s lumbar spine condition was NOT caused or aggravated by service-connected left knee, the examiner should also provide an opinion as to: (a.) whether it is at least as likely as not (50 percent or greater probability) that any service-connected disability, either alone or in combination with another service-connected disability or disabilities, caused or aggravated the Veteran's weight gain or obesity and, if so, (b.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's weight gain or obesity resulting from the service-connected disability or disabilities was a substantial factor in causing or aggravating the Veteran's lumbar spine condition; and, if so, (c.) whether it is at least as likely as not (50 percent or greater probability) that Veteran's lumbar spine condition would not have occurred but for weight gain or obesity caused or aggravated by the service-connected disability or disabilities. Is it at least as likely as not that the Veteran’s lumbar spine condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Right Hip 6. Schedule the Veteran for a VA examination for his right hip condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s right hip condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s right hip condition at least as likely as not proximately due to service-connected left knee? Is the Veteran’s right hip condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service -connected left knee? If the examiner determines that the Veteran’s right hip condition was NOT caused or aggravated by service-connected left knee, the examiner should also provide an opinion as to: (a.) whether it is at least as likely as not (50 percent or greater probability) that any service-connected disability, either alone or in combination with another service-connected disability or disabilities, caused or aggravated the Veteran's weight gain or obesity and, if so, (b.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's weight gain or obesity resulting from the service-connected disability or disabilities was a substantial factor in causing or aggravating the Veteran's right hip condition; and, if so, (c.) whether it is at least as likely as not (50 percent or greater probability) that Veteran's right hip condition would not have occurred but for weight gain or obesity caused or aggravated by the service-connected disability or disabilities. Right Foot 7. Schedule the Veteran for a VA examination for his right foot disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s right foot condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s right foot condition at least as likely as not proximately due to service-connected left knee? Is the Veteran’s right foot disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected left knee? If the examiner determines that the Veteran’s right foot condition was NOT caused or aggravated by service-connected left knee, the examiner should also provide an opinion as to: (a.) whether it is at least as likely as not (50 percent or greater probability) that any service-connected disability, either alone or in combination with another service-connected disability or disabilities, caused or aggravated the Veteran's weight gain or obesity and, if so, (b.) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's weight gain or obesity resulting from the service-connected disability or disabilities was a substantial factor in causing or aggravating the Veteran's right foot condition; and, if so, (c.) whether it is at least as likely as not (50 percent or greater probability) that Veteran's right foot condition would not have occurred but for weight gain or obesity caused or aggravated by the service-connected disability or disabilities. Sinusitis 8. Schedule the Veteran for a VA examination for his sinusitis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s sinusitis at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran’s sinusitis was noted during service with continuity of the same symptomatology since service? The examiner must address the Veteran’s contention that during service he began "getting a lot of sinus pressure", that it continued and now he "can't go more than a week or two" without experiencing symptoms that are very similar to those he experienced while in the service. 9. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.