Citation Nr: 0811376 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-10 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a temporary total disability rating from May 2, 2003, through July 2003, based on the need for convalescence, following surgery on May 2, 2003, to remove a cyst of the left foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from February 1987 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By letter received in October 2007, the veteran withdrew his request for a hearing before a Veterans Law Judge of the Board; a hearing in Washington, D.C., had been scheduled for January 2008. The Board notes that the RO has also developed for appellate consideration the issue of entitlement to an increased schedular rating for left foot disability. It is clear from the veteran's correspondence that he is only seeking appellate review with respect the temporary total rating issue identified on the title page of this decision. Accordingly, the Board will limits decision to the temporary total rating issue. FINDINGS OF FACT 1. All available evidence and information necessary for an equitable disposition of the appeal have been obtained. 2. On May 2, 2003, the veteran underwent surgery for service-connected left foot disability; surgical residuals, to include pain, precluded full weight bearing and necessitated convalescence from May 2, 2003, through July 17, 2003. CONCLUSION OF LAW A temporary total disability rating based on the need for convalescence following left foot for the period from May 2, 2003, through July 2003 is warranted. 38 C.F.R. § 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the evidence currently of record is sufficient to establish the veteran's entitlement to the complete benefit sought on appeal. Therefore, no further development of the record is required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) or 38 C.F.R. § 3.159 (2007). Legal Criteria A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3), set forth below, effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. (a) Total ratings will be assigned under this section 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); or (3) Immobilization by cast, without surgery, of one major joint or more. The U.S. Court of Appeals for Veterans Claims (Court) has held that notations in the medical record as to the veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-297 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. Analysis The veteran claims that he should be awarded convalescent benefits from May 2, 2003, through July 17, 2003, following surgery on May 2, 2003, to remove a painful cyst of the left foot. Numerous letters from the veteran's private treatment provider, Calvin S. Kibwe, D.P.M., document the podiatrist's opinion that the veteran needed to stay away from work from May 2, 2003, to July 18, 2003, following in-office surgery for a painful cyst on the left foot May 2, 2003. See letters from Dr. Kibwe dated in July 2003, March 2005, November 2006, December 2006, and July 2007 (twice). The record includes a release to return to work, effective July 18, 2003, signed by Dr. Kibwe on that date. In the most recent letter from Dr. Kibwe, dated in July 2007, Dr. Kibwe explained that the veteran required convalescence during this period due to severe pain and reduced weight bearing on the post-operative site. In the Board's opinion, the foregoing evidence satisfactorily establishes that the residuals of the surgery on May 2, 2003, necessitated convalescence for the period from that date through July 17, 2003. Accordingly, the veteran is entitled to a temporary total rating for convalescence from May 2, 2003, through July 2003. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a temporary total disability rating based on the need for convalescence from May 2, 2003, through July 2003, because of left foot surgery is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs