Citation Nr: 1104792 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 09-05 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an extension of a temporary total convalescence rating beyond August 1, 2006 under 38 C.F.R. § 4.30 following right knee surgery. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Ms. F.R. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1975 to July 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran had a hearing before the Board in November 2010 and the transcript is of record. The RO received additional evidence from the Veteran in November 2010, before the file was sent to the Board. A supplemental statement of the case (SSOC) was not issued, but this is not necessary since the evidence submitted was accompanied with a signed waiver of local jurisdictional review. The issue of entitlement to an increased rating for a right knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The clinical findings demonstrate that the Veteran did not need continued convalescence following the May 2006 surgery beyond August 1, 2006 for his right knee. CONCLUSION OF LAW An extension of the temporary total rating on account of post- surgical convalescence beyond August 1, 2006 has not been established. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in February 2007. That letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) 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). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. Thus, the Board finds that VA has satisfied the duty to assist the Veteran. Therefore, the Board may proceed to consider the merits of the claim. Temporary Total Evaluation Beyond August 1, 2006 The Veteran contends that he is entitled to an extension of Paragraph 30 (38 C.F.R. § 4.30) benefits beyond August 1, 2006 for convalescence and necessary physical therapy following right knee surgery to repair a torn medial meniscus. According to his statements and testimony of record, it is unclear to what date the Veteran feels his temporary total evaluation should run. During his hearing before the Board in November 2010, for example, the Veteran claims his recovery period following the May 8, 2006 surgery was approximately three months (which is the current period of convalescence awarded to the Veteran). In contrast, he further testified he feels he currently meets the requirements of extended convalescence because even now he requires assistive devices, to include crutches and a cane, for ambulation and constant help with daily activities. According to the record, following the Veteran's May 8, 2006 surgery, the Veteran's physician indicated in a May 2006 statement that the Veteran would require 8 weeks off work to recover after surgery. Thereafter, in July 2006, the Veteran's physician indicated in a statement that the Veteran would require 4 weeks off work for leg strengthening. The record indicates the Veteran actually has not worked since 2001. Rather, the Veteran currently resides on an Indian plantation overseeing a sheep camp and watching his grandchildren. The Veteran testified that he spent the first three months after his surgery housebound and, thereafter, in physical therapy, which he feels worsened his right knee disability. He claims he currently uses crutches, a cane and a knee brace for basic ambulation. The regulatory provisions providing for convalescence ratings read as follows: 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) of this section effective from the date of hospital admission 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. The termination of these total ratings will not be subject to 38 C.F.R. § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. (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 (Effective as to outpatient surgery March 1, 1989); (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, 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) (Effective as to outpatient surgery March 1, 1989); (3) Immobilization by cast, without surgery, of one major joint or more (Effective as to outpatient treatment March 10, 1976); A reduction in the total rating will not be subject to 38 C.F.R. § 3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. (b) A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial three months may be made under paragraph (a)(1), (2), or (3) of this section. (2) Extensions of 1 or more months up to 6 months may be made under paragraph (a)(2) or (3) of this section upon approval of the Adjudication Officer. 38 C.F.R. § 4.130. In this case, the Veteran underwent a right knee medial meniscectomy on May 8, 2006 to repair a torn medial meniscus with manifestations to include joint effusion and limited, painful range of motion. The RO granted the Veteran a temporary total evaluation totaling three months from May 8, 2006 to August 1, 2006. The RO declined extending this temporary total finding that although there was a notation from the Veteran's physician indicating he was off work for four additional weeks starting July 19, 2006 for leg strengthening, there was no medical evidence indicating the Veteran suffered any severe post-operative residuals, such as an unhealing surgical wound, or that the Veteran required a cast or any other immobilization device as required under 38 C.F.R. § 4.30. The Veteran claims he is entitled to an extension for his temporary total evaluation because his right knee disability essentially does render him immobile. Review of the Veteran's surgical and post-surgical records from the private medical facility indicates the Veteran was indeed mobile as early as July 2006, prior to the expiration of his currently awarded convalescence period. On July 19, 2006, medical records indicate the Veteran presented with less knee pain, no joint effusion and normal gait. The Veteran also began leg strengthening at that time. By August 2, 2006, the Veteran was walking up to one mile, albeit with complaints of fatigue and pain, but clearly the Veteran's knee was not immobilized after August 1, 2006. The Board also finds noteworthy that the Veteran was afforded a VA examination in January 2007. At that time, the Veteran indicated he did not wear a brace, but used an ace bandage and a cane in the opposite hand. The Veteran indicated he had 10/10 pain daily, but the examiner noted that the Veteran was sitting at the examination with no obvious discernible pain and, therefore, the examiner disagreed with the Veteran's contention of daily 10/10 pain. At that time, the Veteran was able to move his knee and walk, albeit with some limitation and pain. Again, the medical evidence does not confirm the Veteran's right knee joint was immobilized after August 1, 2006. The January 2007 VA examiner also noted a well-healed surgical scar. In short, the medical evidence does not confirm any severe post- surgical residuals as required by 38 C.F.R. § 4.30 after August 1, 2006. Indeed, as of July 19, 2006, medical records indicate the Veteran was ambulatory with improved pain and no gait abnormality. The Veteran himself testified that he was only housebound after the surgery for about 3 months. The Veteran's temporary total rating currently extends over three months. Again, the Board notes the Veteran's private physician did indicate in a July 19, 2006 statement that the Veteran could not return to work for four weeks due to required leg strengthening post-surgical. The Veteran, prior to the surgery, was unemployed since 2001. Prior to that time, he worked in construction and manual labor. The Veteran testified during his hearing before the Board in November 2010 that he currently resides on an Indian reservation and watches over a sheep camp and his eight grandchildren, ranging from 1 year old to 17 years old. The July 19, 2006 statement from the private physician did not indicate the Veteran was under treatment for serious post- surgical complications, but rather that the Veteran required some amount of physical therapy for four weeks. It is unclear and doubtful that the physician was opining that the Veteran was unable to work at all, but rather that he would not have sufficient usage of his right knee for manual labor until physical therapy was complete. Regardless of the July 19, 2006 physician's intent, the mere fact that the Veteran was medically advised not to return to work cannot support a finding of entitlement to extend the period of surgical convalescence. That is, the criteria of 38 C.F.R. § 4.30 are specific, and do not contemplate the facts as to whether the right knee was fully functional and without impairment. Rather, the provisions of 38 C.F.R. § 4.30 essentially provide compensation for the temporary disability caused by a surgical procedure with recognition that overall disability rating should be re-evaluated after stabilization. The Veteran does not dispute that his recovery spanned only three months. Indeed, much of the Veteran's November 2010 testimony focused on the current severity of his right knee raising the question of whether he is entitled to an increased rating for his service-connected disability, which was referred in the introduction above. As explained above, the medical evidence simply does not support a finding that the requirements under 38 C.F.R. § 4.30 were met after August 1, 2006. Indeed, there is evidence to the contrary. Again, the medical evidence would have to show severe postoperative residuals such as incompletely healed surgical wounds, 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 (with full weight bearing forbidden) or immobilization by cast, without surgery, of one major joint or more. While the Veteran indicates he uses crutches, a cane and a knee brace for ambulation, the medical evidence indicates he is indeed able to walk at least some distance, albeit with complaints of pain, since July 2006. There is nothing in the medical evidence that indicates the Veteran was advised against weight bearing on his right leg and indeed there is evidence to the contrary. The Board also finds the January 2007 examiner's opinion indicating the Veteran's exaggeration of his right knee pain persuasive. Further, there is no evidence that the Veteran's surgical wounds are incompletely healed or otherwise cause severe postoperative complications. Indeed, the January 2007 examiner indicated the Veteran's surgical scar is well-healed. Based upon the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against a finding of any basis to extend the Veteran's convalescence period beyond the three months already granted following the May 8, 2006 surgery. It does not appear that any of the criteria cited in § 4.30 were satisfied as of August 1, 2006 and there is certainly no indication of the criteria being satisfied at any time after August. There were no surgical complications. The surgical wounds were well-healed and the pain was described as being improved from prior to surgery. The medical evidence overwhelmingly supports the finding that the Veteran's right knee was "stable" as of August 1, 2006, to the point that post-surgical convalescence could be considered complete. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The Board, therefore, finds that an extension of a temporary total convalescent rating under the provisions of 38 C.F.R. 4.30 beyond August 1, 2006 is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an extension of a temporary total convalescence rating beyond August 1, 2006 under 38 C.F.R. § 4.30 following right knee surgery is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs