Citation Nr: 21013056 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 20-18 236 DATE: March 8, 2021 ORDER Service connection for a left ankle disability is dismissed. Service connection for a left knee condition, to include as secondary to service-connected plantar calluses of the feet, is granted. A temporary total evaluation for a service-connected left foot disability, requiring convalescence, is granted effective January 11, 2016. FINDINGS OF FACT 1. In December 2020 rating decision, the Veteran was granted service connection for a left ankle disability. 2. Affording the Veteran the benefit of the doubt, her left knee condition is reasonably shown to be related to or caused by her service-connected left foot disability. 3. From January 11, 2016, the Veteran’s service-connected left foot condition necessitated continued convalescence following surgery. CONCLUSIONS OF LAW 1. The appeal on the merits of the Veteran’s claim for service connection for a left ankle disability is moot by virtue of the December 2020 rating decision granting service connection and there remains no matter in controversy for which the Board has jurisdiction on this issue. 38 U.S.C. §§ 7104(a), 7105(d)(5). 2. The criteria have been met for service connection for a left knee condition. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria have been met for the assignment of a temporary total evaluation for convalescence for the service-connected left foot disability from January 11, 2016. 38 U.S.C. §§ 5107, 7104; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to April 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran disagreed with the August 2016 decision. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. While the Veteran’s representative, the American Legion, has not submitted an Informal Hearing Presentation at the time of this decision, because the ankle claim was granted by the RO, and the Board is granting the service connection claim for the left knee disability and an earlier date for the temporary total evaluation, this is not prejudicial to the Veteran. [CONTINUED ON NEX PAGE] Dismissal of Claim The appeal for service connection for a left ankle disability is dismissed. In April 2016, the Veteran filed a claim for service connection for a left ankle disability. In an August 2016 rating decision, the claim was denied. In July 2017, the Veteran submitted a Notice of Disagreement with the August 2016 decision. In a February 2020 Statement of the Case, the claim was readjudicated and denied again. In October 2020, the Veteran submitted a VA Form 9 Substantive Appeal and requested a hearing before a VLJ. Despite the fact that the appeal was pending before the Board, the RO took jurisdiction of the issue and granted service connection for a left ankle disability in a December 2020 rating decision. Therefore, the appeal for service connection for a left ankle disability is moot because the Veteran has been granted this benefit. Under 38 U.S.C. § 7105 (d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. The Veteran’s claim for service connection for a left ankle disability has already been granted in full in a December 2020 rating decision, so there is no longer any pending adverse determination for the Board to adjudicate with respect to the service connection claim for the left ankle disability. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). The appeal on the merits is moot by virtue of the prior grant of service connection and must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for a left knee condition, as secondary to the now-service-connected left ankle disability and bilateral foot disabilities, is granted. Factual Background The Board notes that in a June 1980 service treatment record (STR), the Veteran was treated for her left knee. In a March 2016 opinion, the Veteran’s private examiner noted that she had left knee degenerative arthritis. The examiner reported that the Veteran had a history of injury to her left foot with a retained foreign body (a needle). According to the examiner, this needle caused activity modification where the Veteran had a propensity to bear weight on the lateral aspect of her left foot. This led to persistent abnormal gait and, eventually, left knee pain along the medial aspect of the knee. According to the private examiner, it was “possible” that the Veteran’s symptoms in her left knee were related to varus stress along the medial aspect of her left knee, due to her abnormal gait and due to the retained foreign body (the needle) in her left foot near the lateral metatarsals. The examiner concluded that it was “very likely that this has led to development of early symptomatic degenerative arthritis in her left knee.” In a July 2016 VA examination report, the examiner failed to provide a response as to whether the Veteran was diagnosed with a left knee condition. Despite this, the examiner noted that the Veteran had swelling, disturbance of locomotion, and interference with standing in her left knee. Additionally, the examiner reported that the Veteran had a meniscal tear and knee surgery in 2012. The VA examiner opined that it was less likely than not that the claimed condition was proximately due to or the result of the Veteran’s service-connected condition. The rationale was that the small callous on the plantar aspect of the Veteran’s left foot was not tender to palpation and would not likely cause an altered gait on the examination’s findings. The examiner noted that although a prolonged significant altered gait may cause joint issues, there were no records from any civilian providers she had seen over the years. The examiner did acknowledge that the Veteran had an altered gait. No opinion regarding aggravation was provided. In a December 2020 VA examination report, the Veteran was diagnosed with a left knee meniscal tear and left knee degenerative arthritis. The VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected left foot surgical scar. The rationale was that the left knee condition and the left foot surgical scar condition were not medically related. The left knee condition was a separate entity and unrelated to it. The VA examiner also opined that it was less likely than not that the claimed condition was proximately due to or the result of the Veteran’s service-connected left foot plantar calluses with hallux valgus, status-post removal of foreign body. The rationale was that there was no clear evidence to suggest that an injury to one joint would have any significant impact on another joint. The examiner noted that disease in one joint did not “spread” to another or cause damage to it. No opinion was provided on the question of aggravation for either the Veteran’s service-connected left foot surgical scar or her left foot plantar calluses. In a December 2020 VA ankle examination, the examiner reported that the Veteran had had a foreign body in her left foot for 38 years post-service that impacted her gait and resulted in unnecessary strain to her ankle, causing a ligament tear to the anterior talofibular and hallux valgus formation. At her February 2021 Board hearing, the Veteran testified that she twisted her knee during service and sought treatment. The Board notes that this was corroborated by the June 1980 STR. The Veteran stated that she experienced observable pain at the time that was later diagnosed as a meniscal tear with arthritis. She testified that that same pain persisted and continued ever since active service. Analysis The Board finds that the first part of the March 2016 private opinion is inadequate because the examiner used speculative language in noting that it was “possible” that the symptoms in the Veteran’s left knee were related to varus stress. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); 38 C.F.R. § 4.16(a); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions expressed in speculative language would not establish a plausible claim). However, the second part of the private opinion IS adequate because the examiner did not use speculative language. In reference the Veteran’s abnormal gait and the retained foreign body in her left foot, the examiner opined that it was “very likely that this has led to development of early symptomatic degenerative arthritis in [the Veteran’s] left knee” (emphasis added). Additionally, the Board finds that both the July 2016 and December 2020 VA examination reports are inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither examination report contained an opinion regarding aggravation and both opinions regarding direct causation were conclusory. Because of this, the Board finds that the March 2016 private nexus opinion, combined with the Veteran’s statements and her February 2021 testimony, leads the Board to determine that it is at least as likely as not that the Veteran’s current left knee condition is related to her active service as well as her service-connected left foot disabilities. The evidence demonstrates that the Veteran’s left knee condition, which began during active service, was further aggravated by her service-connected left foot disabilities, and continued to the present, and the Board finds this to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that, under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). Based on the above analysis, the Board determines that resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Temporary Total Evaluation Legal Criteria Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the day of the month following hospital discharge or outpatient release when treatment of a service-connected disability results 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 case, 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 case, without surgery, of one major joint or more. 38 C.F.R. § 4.30. A temporary total evaluation for a service-connected, left foot disability, requiring convalescence, effective January 11, 2016, is granted. Factual Background and Analysis In a September 2020 rating decision, the Veteran was granted a temporary evaluation of 100 percent for her service-connected left foot hallux valgus effective April 21, 2016. However, as noted in her medical records, April 21, 2016 was the date of her second surgery. The Veteran’s first surgery was on January 11, 2016. Following both surgeries, the Veteran lost her job and was unable to work for a long period of time because of the combined effects of both surgeries. [CONTINUED ON NEXT PAGE] Based on these medical records, a temporary total evaluation is warranted from January 11, 2016, the date of the Veteran’s first surgery for her left foot. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.30. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, Counsel 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.