Citation Nr: 1019645 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 06-20 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an extension of a temporary total disability rating based on the need for convalescence beyond January 1, 2006. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard INTRODUCTION The Veteran had active military service from June 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The Veteran had right ankle surgery on November 23, 2005. 2. A temporary total disability evaluation was assigned from November 23, 2005 to January 1, 2006, based on a need for convalescence following right ankle surgery. 3. The competent clinical evidence of record reflects that the Veteran was able to report to full duty on March 1, 2006. CONCLUSION OF LAW The criteria for a temporary total disability evaluation from January 1, 2006 to March 1, 2006, based on postoperative convalescence following right ankle surgery have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 4.30 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for service connection, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In correspondence to the Veteran in January 2006, VA informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. In correspondence dated in March 2006, VA notified the Veteran that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini v. Principi, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because complete VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains service treatment records (STRs), VA and private examination and treatment records, a list of employment duties, and the statements of the Veteran in support of his claim. The Board has reviewed the medical records and statements of the Veteran and concludes that there is no identification of evidence which VA has a duty to obtain. The Board notes that the Veteran was apparently seen on February 21, 2006 by Dr. G.H. No clinical records from this visit are associated with the claims file; however, as the Board, in the decision below, allows the Veteran's claim, there is no prejudice to the Veteran, and a remand to obtain the records is not necessary. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). A VA examination was obtained in March 2006. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is more than adequate as it is predicated on a physical examination of the Veteran, and corroborates the private physician's statement that the Veteran was able to return to work on March 1, 2006. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Applicable Law A total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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). Extensions of 1, 2 or 3 months beyond the initial three months may be made by applying the same criteria. 38 C.F.R. § 4.30(b). The 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 provision of 38 C.F.R. § 4.30. The Court has also held that the inability to return to any employment would, in fact, show a need for continuing convalescence. See Seals v. Brown, 8 Vet. App. 291, 296-97 (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 is service-connected for postoperative right ankle injury with instability effective from February 1999. A September 2005 private medical record reflects that it was medically recommended that the Veteran have additional right ankle surgery. It was noted that if he proceeded with surgery, he would be "off work" for approximately 12-16 weeks of regular duty. Subsequent to the recommendation, the Veteran had right ankle surgery on November 23, 2005. A private clinical record, dated the same day of surgery, noted that the Veteran could ambulate with crutches. Approximately two weeks post surgery, a prescription note, dated December 6, 2005, reflects Dr. G.H.'s opinion that he "could anticipate a 4 month recovery period before [the Veteran] could return to his regular job." An initial post operative evaluation record, also dated December 6, 2005, reflects that the Veteran could bear weight "as tolerated." Approximately four weeks post surgery, correspondence, dated December 27, 2005, by Dr. G.H., reflects that the Veteran's recovery was satisfactory, his ankle was stable clinically, he was not having much pain or swelling, he was provided with a "Cam Walker", and he was instructed on exercises. It was noted that he had brace and it would be reasonable for him to wean into it. Approximately three months post surgery, a February 21, 2006 private medical record by Dr. G.H. reflects that the Veteran could return to full duty on March 1, 2006. A VA examination report, dated on March 1, 2006, reflects that the Veteran reported that he would return to work on March 9, 2006, after a three month medical leave of absence. The Veteran reported that he had not had any right ankle instability since the surgery. A list of job duties submitted by the Veteran reflects that his position as an accounts manger requires lifting, loading, and "dollying" merchandise of 50 to 300 pounds and good driving skills. A pre-surgery July 2005 VA examination report also reflects that the Veteran reported that his employment required moving heavy items. In sum, prior to surgery, Dr. G.H. anticipated a 3 to 4 month recovery period, and post surgery, Dr.G.H. noted a three month recovery period. The Board notes that in his notice of disagreement, dated in February 2006, the Veteran requests four months of convalescence, or temporary total disability rating. There is no clinical evidence of record which refutes the expert medical conclusion of the Veteran's physician that the Veteran was able to return to full duty on March 1, 2006. The Board finds, based on the opinion of Dr. G.H. and on the March 1, 2006 VA examination, that the Veteran was able to return to full employment on March 1, 2006. The Board finds that the Veteran is entitled to additional months of a temporary totally disability rating under 38 C.F.R. § 4.30, from January 1, 2006 to March 1, 2006. 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2009), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an extension of a temporary total disability rating based on the need for convalescence from January 1, 2006 to March 1, 2006 is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs