Citation Nr: 22017133 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-38 312 DATE: March 24, 2022 ORDER Entitlement to service connection for the residuals of a left leg injury, to include as secondary to the Veteran's service-connected conditions, is granted. REMANDED Entitlement to a temporary total rating based on hospitalization in excess of 21 days and convalescence due to a left leg surgery is remanded. FINDING OF FACT The persuasive evidence of record indicates that the Veteran's residuals of a left leg injury are proximately due to or aggravated by his service-connected bilateral hip and knee conditions, including the altered gait resulting from these conditions. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a left leg injury, to include as secondary to the service-connected bilateral hip and knee conditions, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to September 1997. These matters come to the Board of Veterans' Appeals (Board) from an August 2015 rating decision. In October 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. 1. Entitlement to service connection for the residuals of a left leg injury to include as secondary to the Veteran's service-connected conditions is granted. The Board acknowledges that the Veteran did not submit a claim of service connection for the residuals of a left leg injury. The Veteran did, however, claim temporary total disability for surgery stemming from a left leg injury. As the medical evidence indicates that the left leg injury and the resulting residuals were due to or the result of service-connected conditions, the Board finds that the issue of entitlement to service connection for the residuals of a left leg injury was reasonably raised by the record. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) ("the Secretary generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing" (citing Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000))); Robinson v. Peake, 21 Vet. App. 545, 553 (2008) (explaining that the Board errs when it fails to consider an issue reasonably raised by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009); Caluza, 7 Vet. App. at 506; Gilbert, 1 Vet. App. at 57. If the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). The Board finds that service connection is warranted for the residuals of a left leg injury as secondary to the Veteran's service-connected bilateral hip and knee conditions. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). According to June 2015 medical treatment records, the Veteran suffered a fall from a ladder in June 2015 leading to multiple surgeries and residual symptoms. Second, the Board finds that the Veteran is properly service connected for left hip bursitis and arthroplasty, right hip arthritis and total arthroplasty, and degenerative joint disease of the bilateral knees. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Third, the Board finds that the evidence of record does support a finding that the Veteran's left leg injury and resulting residuals were due to his service-connected conditions. In a September 2015 correspondence, the Veteran's treating physician stated that the Veteran's military service resulted in pre-mature arthritis to his hips, knees, and right ankle. The physician found that the Veteran's arthritis led to his hip and knee surgeries which in turn caused gait instability. He determined that the Veteran's June 2015 fall which resulted in the left leg fractures were due to this gait instability. An October 2015 letter from his treating physician noted that the Veteran's service-connected left hip disability caused potential gait instability. The Board finds these opinions probative as it they are based upon a review of the relevant lay and medical evidence and the physicians provided supporting explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). As there are probative positive opinions of record and no contrary medical opinions, the Board finds that service connection is granted. REASONS FOR REMAND 1. Entitlement to a temporary total rating based on convalescence due to a left leg surgery is remanded. The Veteran is seeking a temporary total rating for hospitalization in excess of 21 days and for a period of convalescence following surgical treatment of his left leg performed in June and July 2015. The AOJ previously denied the rating due to his left leg condition not being related to his service. This Board decision grants entitlement to service connection for residuals of a left leg injury. As a result, initial disability ratings for the relevant periods on appeal would be assigned. As the AOJ will be assigning initial ratings from the date of service connection to the present, the question of a temporary total rating based upon hospitalization in excess of 21 days (38 C.F.R. § 4.29) and convalescence following left leg surgery (38 C.F.R. § 4.30) is intertwined with the initial rating of the Veteran's residuals of left leg injury when implementing the grant of service connection. Therefore, this issue must be remanded for the assignment of initial disability ratings for the Veteran's residuals of left leg injury. The matters are REMANDED for the following action: 1. While assigning initial disability ratings for the now service-connected residuals of left leg injury, the RO should clarify the nature and extent of care received by the Veteran from his brother while he was undergoing his multiple left leg surgeries in June and July 2015 in order to determine whether the Veteran required frequent care of a physician or nurse at home. 38 C.F.R. § 4.29 (c). The RO should also determine when the Veteran's need for convalescence ended following the June and July 2015 surgeries. That is, when did the Veteran regain or return toward a normal or a healthy state? Readjudicate the issue of a temporary total rating based upon hospitalization in excess of 21 days (38 C.F.R. § 4.29) and convalescence following left leg surgery (38 C.F.R. § 4.30) in June and July 2015. (Continued on the next page) If any benefit sought remains denied, furnish to the Veteran a supplemental statement of the case (SSOC). Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.