Citation Nr: 22016547 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-32 987 DATE: March 22, 2022 ORDER Entitlement to service connection for a left knee meniscal tear status post arthroscopic partial medial meniscectomy is granted. Entitlement to a temporary total rating based on treatment for a service-connected left knee meniscal tear requiring convalescence is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left knee meniscal tear status post arthroscopic partial medial meniscectomy is at least as likely as not related to an injury during his active service. 2. The Veteran's July 31, 2015 left knee surgery did not require convalescence for at least one month. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee meniscal tear status post arthroscopic partial medial meniscectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.304. 2. The criteria for a temporary total rating based on treatment for a service-connected left knee meniscal tear requiring convalescence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of the hearing is associated with the electronic claims file. These claims were previously remanded in September 2021. I. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left knee meniscal tear status post arthroscopic partial medial meniscectomy. The Veteran has previously been granted service connection for left knee tendonitis, chondromalacia, and patellofemoral syndrome based on the opinion of his private orthopedic physician, Dr. M.S.S. In November 2015, Dr. M.S.S. gave an initial opinion that "I do not think that there is any direct relation to any intraarticular damage with regard to the medial meniscal tear." referencing the Veteran's left knee, while opining that the other conditions were at least as likely as not a result of a fall the Veteran took during his active service. However, in May 2021 Dr. M.S.S. provided an updated letter listing the Veteran's current diagnoses as a left knee medial meniscus tear, chondromalacia of his patella, and a history of a knee laceration in 1996, clarifying his previous opinion stating "It is my opinion that it is as likely as not based on my review of his records and history of service treatment and medical records that his current left knee conditions began or were permanently aggravated while he was on active duty in the U.S. Marine Corps from February 1994 through February 1998. I believe the left knee injury is directly correlated to the coral rock incident that happened in October of 1996." Another VA opinion was obtained regarding the Veteran's left meniscal tear in December 2021. The examiner opined that the condition was less likely than not caused or aggravated by the Veteran's in-service injury. In a February 2022 letter in support of his claim, the Veteran referred to the May 2021 opinion from Dr. M.S.S. and reaffirmed that it is his belief that the injury he sustained in service caused his left knee meniscal tear. He also provided portions of medical articles indicating that he could have been suffering a meniscal tear for years and that they can occur following a hard fall, such as his in-service fall. Finally, the Veteran contended that his recent VA examiner did not ask any questions about the origins of his meniscus tear or any other diagnosis, only asking questions about his current knee condition. The Board notes that the Veteran has had recent VA examinations for his knees in conjunction to a claim for right knee conditions, and that the December 2021 opinion was based on a record review only. As the record contains positive and negative nexus opinions, resolving reasonable doubt in favor of the Veteran, service connection for a left knee meniscal tear status post arthroscopic partial medical meniscectomy is granted. II. Temporary Total Disability Rating A temporary total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days, or has required hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30, 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 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 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. 38 C.F.R. § 4.30(a). 2. Entitlement to a temporary total rating based on treatment for a service-connected left knee meniscal tear requiring convalescence. A review of the record shows that the Veteran underwent left knee debridement of medial meniscus/partial meniscectomy on July 31, 2015. The Veteran was discharged that same day with the following instructions: "diet no restrictions; activity no restrictions, may bear weight as tolerated; physical limitations no restrictions, may bear weight as tolerated." He was scheduled for a post-op appointment on August 12, 2015. At his post-op appointment, it was noted that his pain has improved and "patient can return to work light duty for 4 weeks." VA treatment records do not show any additional left knee appointments following the August 12, 2015 post-op appointment. Moreover, the Veteran did not provide any additional argument in support of this claim. "Surgery necessitating at least one month of convalescence" means surgery "that would require at least one month for the veteran to return to a healthy state" that is "established by report at hospital discharge... or outpatient release." Felden v. West, 11 Vet. App. 427, 430 (1998). A review of the record does not show that the Veteran completed any physical therapy following his outpatient July 2015 surgery. Moreover, he was released the same day with no activity restrictions and less than two weeks later released to light duty work. Thus, the Board finds the persuasive evidence against the finding that his left knee meniscectomy required at least one month of convalescence as required for a temporary total rating under 38 C.F.R. § 4.30. Accordingly, entitlement to a temporary total rating based on treatment for a service-connected left knee meniscal tear requiring convalescence is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, Associate 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.