Citation Nr: 0606166 Decision Date: 03/03/06 Archive Date: 03/14/06 DOCKET NO. 04-31 705A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a temporary total rating for convalescence following the expiration of a temporary total rating for hospital treatment of service-connected disability on 30 April 2003. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military service from December 1982 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted the veteran a temporary total rating under 38 C.F.R. § 4.29 (2005), effective from 26 February 2003 (date hospitalized for surgery for service-connected left knee disorder) until 31 May 2003, after which the veteran's service-connected left knee evaluation was established at a stabilized 30 percent rating. The veteran disagreed with both the termination date of the temporary total rating and the assigned evaluation following that rating. During the pendency of the appeal, in February 2005, the RO granted the veteran entitlement to a total rating based upon individual unemployability, made effective from April 2004. In September 2005, the representative withdrew the veteran's earlier request for a travel board hearing and withdrew any pending claims for increased ratings for service-connected disabilities. The representative indicated that the only remaining issue that the veteran wished to pursue was the extension of a temporary total rating for convalescence following his hospitalization for surgery on his service-connected left knee disorder. The case is now ready for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and equitable disposition of the appeal has been requested or obtained. 2. On 26 February 2003, the veteran was hospitalized with VA for surgical treatment of his service-connected left knee iliotibial band syndrome, and also for surgical treatment of his nonservice-connected right leg quadriceps tendon, and because postoperatively the veteran was rendered entirely immobile and confined to either a bed or wheelchair, he remained hospitalized until released on 9 May 2003, and the RO subsequently assigned a temporary total rating for hospitalization in excess of 21 days under 38 C.F.R. § 4.29 (2005), and made this allowance effective through 31 May 2003. 3. Although discharged from the hospital on 9 May 2003, the veteran continued in a course of physical therapy treatment during which he was only able to ambulate to and from the hospital in a wheelchair and later in a walker until sometime near the end of July 2003, at which point the veteran is consistently documented as being able to ambulate with bilateral knee braces and a cane. CONCLUSION OF LAW The criteria for the assignment of a temporary total rating for convalescence under 38 C.F.R. § 4.30(a)(2), for the period commencing on 1 June 2003 through 31 July 2003, but no longer, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.29, 4.30 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Law and Regulation: VCAA and regulations implementing this liberalizing legislation are applicable to the veteran's claim. VCAA requires VA to notify claimants of the evidence necessary to substantiate their claims, and to make reasonable efforts to assist claimants in obtaining such evidence. The July 2003 rating decision in this case included an allowance of a temporary total rating being provided the veteran for service-connected disability requiring hospital treatment. Following the veteran's disagreement with the termination of the temporary total rating, he was provided formal VCAA notice in September 2003, February 2004, and March 2005. These notifications informed the veteran of the evidence necessary to substantiate his claim, the evidence he was responsible to submit, the evidence VA would collect on his behalf, and advised he submit any relevant evidence in his possession. During the period of this appeal, the veteran was provided three VA examinations in May and November 2003 and February 2005 which are adequate for rating purposes, and all records of the veteran's postoperative outpatient treatment including physical therapy were collected for review. In March 2004, the veteran contacted RO personnel indicating, in response to receipt of a VCAA notice letter, that he had no additional evidence to submit in support of his claim. It is clear that all necessary relevant evidence on the issue of an extension of a temporary total rating has been collected for review. VCAA is satisfied in this appeal. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; Quartuccio v. Principi, 16 Vet. App. 183 (2002). A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA facility in excess of 21 days. This increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge. The assignment of a total disability rating on the basis of hospital treatment will not preclude the assignment of a total rating otherwise in order under other provisions of the schedule, and consideration will be given to the propriety of such a rating in all instances, and to the propriety of its continuance after discharge. 38 C.F.R. § 4.29. A temporary total disability rating will be assigned, without regard to other provisions of the rating schedule, when it is established by report at hospital discharge that entitlement is warranted, 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), (3) immobilization by cast, without surgery, of one major joint or more. A temporary total rating for convalescence will commence from the first day of the month following such hospital discharge and may be assigned for a period of 1, 2, or 3 months. Such temporary total rating will be followed by an open rating reflecting the appropriate schedular evaluation. Extensions of 1, 2, or 3 months beyond the initial 3 months may be made under certain circumstances as may extensions of 1 to 6 months beyond the initial 6-month period. 38 C.F.R. § 4.30 (emphasis added). Analysis: Historically, the veteran's service-connected iliotibial band syndrome of the left knee was in receipt of a 10 percent evaluation from January 1991, and a 20 percent evaluation from July 2000. A VA hospitalization discharge summary indicates that the veteran was seen in February for bilateral knee pain after engaging in sports activities. Later, while going up the stairs, he had an acute pain and popping and when he presented to an emergency room he was diagnosed with both a right quadriceps tendon rupture, as well as a left patellar tendon rupture. The veteran was admitted to a VA hospital for surgery on both knees on 26 February 2003. The left patellar tendon rupture was viewed as an exacerbation of his preexisting service-connected iliotibial band syndrome. The veteran was and is not service connected for the right quadriceps tendon rupture, or any post- operative residuals. Following successful surgery for both knees, the veteran was transferred to an extended care unit for rehabilitation, specifically because he was non-weight bearing for at least six weeks and would have to have physical therapy. The veteran remained hospitalized from the date of surgery on 25 February until discharged from the hospital on 9 May 2003. Appropriately, and in accordance with the governing regulation at 38 C.F.R. § 4.29, the RO established a temporary total disability rating based upon a period of hospitalization, which commenced the day of surgery on 26 February 2003 and extended to "the last day of the month of termination of hospitalization." Since the veteran had been discharged on 9 May 2003, the temporary total rating was made payable through the last day of the month of termination of hospitalization, 31 May 2003. A 30 percent evaluation was then assigned commencing on 1 June 2003, and the appeal regarding this postoperative evaluation has been withdrawn and is not before the Board for an appellate decision. Although discharged from the hospital on 9 May 2003, the records on file clearly show that the veteran immediately commenced a regimented course of outpatient physical therapy which was conducted at the hospital for rehabilitation of both the veteran's service-connected right knee, and his nonservice-connected left knee. Initially, the veteran is clearly documented as arriving for these outpatient physical therapy treatments via a wheelchair, which was his only mechanism of conveyance. He wore metal knee braces which were fixed in a 90-degree position while the veteran was in his wheelchair. The veteran's first visit for physical therapy following the expiration of his temporary total rating on 3 June 2003 noted that he arrived via a manual wheelchair and that he was wearing bilateral knee braces set to 90 degrees of flexion. He had brought a rolling walker with him. On 25 June 2003, the veteran was able to ambulate to outpatient therapy with a rolling walker, still wearing bilateral knee braces. On 7 July 2003, the veteran continued to ambulate to outpatient therapy with a rolling walker and bilateral knee braces. The same was true for physical therapy documented on 9 July 2003. VA outpatient treatment records from 17 July 2003 note that the veteran had slowly made progress for both right and left knee range of motion and strength. It was noted that the veteran's bilateral knee tendon repair, almost five months after surgery, had met the range of motion goals set by physical therapy personnel. The veteran was considered capable of doing exercises at home and through a therapeutic recreational gymnasium. On 22 July 2003, the veteran is first documented as ambulating to physical therapy with a standard cane and bilateral knee braces. The bilateral knees were noted to have good strength with functional range of motion, mild crepitus, and no edema. On 4 August 2003, the veteran presented again with a rolling walker but this was not for outpatient physical therapy but in conjunction with his request for paperwork indicating that he had had bilateral knee surgery and would not be able to work. All subsequent notations regarding the veteran's treatment with VA indicate that he was able to ambulate with a standard cane and knee braces without either wheelchair or a rolling walker. VA examination at the end of May 2003, two days prior to the termination date of the veteran's temporary total rating, the veteran was still apparently ambulating outside of the home only in a wheelchair and inside the home using a walker or crutches. VA examination in November 2003 did not indicate that the veteran remained in a wheelchair or that he required a rolling walker. Left knee examination was negative for joint deformity or deviation, there was no inflammation of effusion and there was no laxity. Anterior/posterior drawer test and valgus varus stress test were within normal limits. Left knee range of motion was from 5 degrees' extension to 110 degrees' flexion. The governing regulation with respect to convalescent ratings provides that a temporary total rating will be assigned when it is established by the medical record that a veteran has undergone surgery resulting in the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). Following the 31 May 2003 expiration of the veteran's temporary total rating based upon VA hospitalization in accordance with 38 C.F.R. § 4.29, the clinical record clearly reveals that the veteran continued to be only able to ambulate through the use of first a wheelchair and then a rolling walker for the next two months including all of June and July 2003. Accordingly, the clinical evidence on file merits the award of an additional temporary total evaluation, in accordance with 38 C.F.R. § 4.30(a)(2) commencing 1 June 2003 through 31 July 2003. From August 2003 through present, the veteran is not shown to have a postoperative residual requiring the continued necessity for using a wheelchair or crutches (and the Board views a rolling walker as reflective of even more restriction than crutches). The veteran's continued use of a cane and knee braces after August 2003 does not warrant any continuation of the temporary total rating for convalescence in accordance with the governing regulation at 38 C.F.R. § 4.30. In making this award, the veteran should understand that a temporary total rating for convalescence is only warranted for the postoperative residuals of his left knee iliotibial band syndrome, and is not warranted for nonservice-connected disability, including the contemporaneous surgery provided for his right quadriceps tendon repair. It is clear that both surgeries were accomplished simultaneously and that each surgery resulted in essentially both limbs being non-weight-bearing for a period of time. Although the veteran may have been able to ambulate sooner had there been no disability of his nonservice-connected right knee, the Board has granted the veteran the benefit of the doubt in this case in finding that two months of additional temporary total rating for convalescence is warranted. ORDER Entitlement to a temporary total rating for convalescence, following the 30 April 2003 expiration of a temporary total rating for hospital treatment for service-connected disability, from 1 June 2003 through 31 July 2003 is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs