Citation Nr: 0005970 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 95-16 868A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for osteomyelitis of the right lower extremity. 2. Entitlement to a temporary and total rating based on hospitalization at a VA medical facility from March 14, 1994, to March 30, 1994, and from April 23, 1994, to May 3, 1994. 3. Entitlement to a temporary total convalescent evaluation under the provisions of 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 1995 rating decision of the RO. The Board notes that in the written brief presentation dated in February 2000, the veteran's representative asserted an additional claim of service connection for right flailed foot. As this issue has not been developed for appellate review, it is referred to the RO for appropriate action. The Board further notes that, in his initial claim submitted in March 1994, the veteran asserted that he was entitled to temporary and total ratings based on hospitalization at a VA medical facility under 38 C.F.R. § 4.29 and under the provisions of 38 C.F.R. § 4.30 for required convalescence. In January 1995, the RO issued a rating decision which addressed only the claim of entitlement under 38 C.F.R. § 4.30. The veteran subsequently filed a Notice of Disagreement in response to this decision; however, in the Statement of the Case issued in May 1995, the RO addressed only the claim of entitlement under 38 C.F.R. § 4.29. In light of the above circumstances, the Board assumes jurisdiction over both claims, as reflected on the cover page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's osteomyelitis of the right lower extremity is the likely result of injuries suffered in service. 3. The veteran was not treated for a service-connected disability in excess of 21 days when hospitalized by VA in March or April 1994. 4. The surgery performed during VA hospitalization from April 23, 1994, to May 3, 1994, was for treatment of service connected disability and necessitated at least one month of convalescence. CONCLUSIONS OF LAW 1. The veteran's osteomyelitis of the right lower extremity is due to injuries which were incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 2. The criteria for temporary total ratings under the provisions of 38 C.F.R. § 4.29, based on hospitalizations in March and April 1994, have not been met. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 4.29 (1999). 3. The criteria for entitlement to benefits for a temporary total convalescent rating for surgery performed in April 1994 have been met. 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran contends that he suffers from osteomyelitis of the right lower extremity as a residual of an injury which was incurred in service. The veteran testified at a hearing at the RO in June 1995, that while serving in Vietnam in January 1968, he received multiple shrapnel wounds to both legs, the chest and his left shoulder. According to the veteran, both legs suffered open wounds and fractures. He further reported that in the early 1970s, he sustained a broken ankle in a motor vehicle accident, which was treated by placement of screws. The veteran testified, however, that the problems with his right leg, specifically drainage, pre- dated the motor vehicle accident. A careful review of the veteran's service medical records confirms that in January 1968, the veteran incurred multiple shrapnel wounds to both lower extremities with particles of debris protruding from the wounds. VA outpatient treatment reports obtained in support of the veteran's claim document that the veteran was hospitalized from March 14, 1994, to March 30, 1994, for treatment of osteomyelitis of the right tibia. The discharge summary associated with this hospitalization reported a history of injury to his right lower extremity which developed into chronic osteomyelitis. This right tibial wound was noted to have had recurrent drainage for the last twenty years. The veteran was subsequently hospitalized from April 23, 1994, to May 3, 1994, for surgery for chronic osteomyelitis of the right tibia. At that time, it was noted that the veteran had a history of chronic osteomyelitis secondary to shrapnel wound in Vietnam in 1968. The surgery consisted of a procedure to aspirate his right ankle. The veteran was afforded a VA examination in December 1994. It was noted that the veteran had been involved in a mine explosion in service and had incurred open, severe wounds to the left shoulder and the right and left lower legs with significant loss of tissue. The veteran was stated to have experienced recurrent infections in the right lower extremity with osteomyelitis most recently occurring in 1994. He presented to the examination with continued complaints of pain in the right lower extremity. Examination of the right leg revealed range of motion of the right knee from 0 to 120 degrees with patellofemoral crepitation. There was also a bony prominence noted over the medial joint fissure with pain and tenderness. The right foot was flailed and held in -15 degrees of neutral with no active motion. Periarticular fullness was evident in the ankle with pain and tenderness. Extensive scarring was noted about the anteromedial aspect of the entire right tibia with the scar tissue adherent to the bone in some areas. Trophic changes were also evident with pigment changes from the proximal to the distal medial aspect of the right tibia. The toes on the right foot were also noted to be flailed. A dorsalis pulse could not be elicited; however, the posterior tibial pulse was intact but decreased as compared to the left. The final diagnoses included status post open fracture of the right tibia with deformity and history of osteomyelitis and flailed right foot with degenerative joint disease of the right knee along with arthrofibrosis. The veteran was also noted to have genu and tibial varum, bilaterally. The veteran was afforded another VA examination in January 1998. At that time, a history of bilateral tibial-fibula fractures with chronic osteomyelitis, particularly of the right lower extremity, with oozing discharge of several years in duration, was noted. Examination demonstrated severe deformity of both legs below the knee, with bowing of both tibias. There was also massive scar tissue on both lower extremities, particularly below the knee. The final impression included a diagnosis of severe deformities of both legs. In support of his claim, the veteran submitted a statement from Craig N. Bash, M.D. Dr. Bash noted that, based on a review of the medical records, the veteran had incurred serious, in-service dirty wounds to his lower extremities which required antibiotic treatment. Dr. Bash then cited to medical literature as a basis for the proposition that dirty wounds, either by direct inoculation of bone or by direct extension to the bone from overlying or adjacent tissue, could clearly result in chronic osteomyelitis. As a result, based on a review of the medical record, patient testimony, and the medical literature concerning chronic osteomyelitis, Dr. Bash opined that it was as likely as not that the veteran's right lower leg osteomyelitis was a result of his dirty, in-service shrapnel wounds to the right lower extremity. II. Analysis A. Service connection As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. The regulations provide that 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Based on a review of the evidence as a whole, the Board finds that the preponderance of the evidence supports the veteran's claim of service connection for osteomyelitis of the right lower extremity. Of particular significance is the opinion from Dr. Bash, who, after review of the claims folder and pertinent medical literature on the subject, carefully reasoned that the veteran's right lower leg osteomyelitis was, in fact, related to his military service. Thus, the Board finds that service connection for osteomyelitis of the right lower extremity is warranted. B. Temporary total evaluation 1. 38 C.F.R. § 4.29 Initially, the Board notes that a determination as to whether the veteran has submitted a well-grounded claim as to this issue need not be addressed. The concept of well grounded applies to the character of the evidence presented by a claimant. For purposes of this decision, as there is no dispute as to the evidence, but only to the law and its meaning, the concept of well grounded is not found to be applicable. Sabonis v. Brown, 6 Vet. App. 426 (1994). A total rating will be assigned without regard to the provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. VA outpatient treatment records show that the veteran was hospitalized for treatment of osteomyelitis of the right lower extremity from March 14, 1994, to March 30, 1994, and from April 23, 1994, to May 3, 1994. The evidence shows that the veteran was not hospitalized for treatment of a service-connected disability in excess of 21 days during either of these periods of inpatient treatment. Consequently, the record does not support a grant of entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29, and the veteran's claim for this benefit accordingly must be denied as legally insufficient. Although the Board considered and denied the veteran's claim on a ground different from that of the RO, the Board finds that veteran has not been prejudiced by the fact that the RO did not consider the veteran's claim of entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29 based on hospitalization for osteomyelitis of the right lower extremity after service connection for this condition had been established. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board finds that there has been no prejudice to the veteran because a temporary total disability rating under 38 C.F.R. § 4.29 is not warranted as a matter of law and no argument or evidence could provide the basis for granting such benefits. 2. 38 C.F.R. § 4.30 A temporary total disability rating is granted if it is established by report at hospital discharge or outpatient release that entitlement is warranted (under 1, 2, or 3, listed below), effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months (or more) from the first day of the month following such hospital discharge or outpatient release. A total disability rating will be assigned when 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. 38 C.F.R. § 4.30. As noted above, the veteran was hospitalized for treatment of his service-connected osteomyelitis of the right lower extremity in April 1994. In support of his claim, the veteran submitted a statement dated in October 1995 from Anna M. Hyneman, R.N., Community Health Nurse Coordinator, and Caroline C. Johnson, M.D., Chief, Infectious Diseases, of the Philadelphia VA Medical Center. According to Ms. Hyneman and Dr. Johnson, following the April 1994 surgery, the veteran, consistent with current medical practice designed to assist patients in adjusting to a chronic medical condition and to free beds for more acute problems, was discharged to home on intravenous Vancomycin for 6 weeks and was to be non-weight bearing on the right lower extremity. He was also given appointments to report to the Orthopedic Clinic and to the I.V. Infusion Clinic in order to adjust the antibiotics and check his serum creatinine. Ms. Hyneman and Dr. Johnson went on to state that the veteran was, in fact, checked in both the Orthopedic and Infectious Disease Clinics and was unable to return to work until October 1994. Based on a review of the evidence, the Board finds that the April 1994 hospitalization was for treatment of a service connected disability, specifically, osteomyelitis of the right lower extremity. In addition, the subsequent medical evidence indicates that that the surgery performed during this hospitalization required at least one month of convalescence. Accordingly, the criteria for entitlement to a temporary total rating based on the hospitalization in April 1994 are met. ORDER Service connection for osteomyelitis of the right lower extremity is granted. Entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29, based on hospitalizations in March and April 1994, is denied. Entitlement to a temporary total convalescent evaluation under the provisions of 38 C.F.R. § 4.30 is granted. Keith W. Allen Acting Member, Board of Veterans' Appeals