Citation Nr: 1104298 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 06-08 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30, before or after June 30, 2004, for a total left knee arthroplasty (TKA) due to treatment requiring convalescence. 2. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30, before or after July 31, 2005, for a total right knee arthroplasty (TKA) due to treatment requiring convalescence. 3. Entitlement to a 100 percent disability evaluation for a left knee TKA, for a period of one year, following convalescence. 4. Entitlement to a 100 percent disability evaluation pursuant to for a right knee TKA, for a period of one year, following convalescence. 5. Entitlement to concurrent receipt of military retired pay and VA service-connected disability compensation. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran last served on active duty in the United States Marine Corps from May 1983 to July 1993 with 15 years and 10 months of prior active service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO assigned a 100 percent temporary evaluation for the right knee effective July 1, 2004 to July 31, 2005. For the left knee a temporary evaluation was assigned effective May 27, 2003 to June 30, 2004 based on convalescence. In August 2005, the Veteran filed a notice of disagreement referencing a notice letter of April 2005, which notified him of a rating decision granting service connection for PTSD. However, his disagreement stemmed from the convalescence rating decision of October 2004. The Veteran was originally scheduled to testify at a video- conference hearing in March 2009. Notice of the hearing date was provided to him in February 2009. The evidence of record indicates that the appellant failed to report for his scheduled hearing. The appellant has not asked that the hearing be re- scheduled and he has not provided good cause for his failure to report. The Board considers the appellant's request for a hearing to be withdrawn and will conduct its appellate review based on the evidence of record. See 38 C.F.R. § 20.704(d) (2010). The issue of CUE 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. Several documents in the file reference that they were pulled from the Veteran's Virtual VA electronic file. The Virtual VA file was checked here at the Board and documents not associated with the file were printed and associated with the file. This case was remanded in April 2009 and November 2009 for further development. In November 2009, the RO was to provide appropriate notice, to provide reasons and bases regarding the claim for convalescence, and for a financial audit of VA compensation payments from January 1, 2003 to January 1, 2006. A review of the claims file shows that the notice and rationale were provided, but the file is still lacking financial information for the claim for entitlement to concurrent receipt of military retired pay and VA service-connected disability compensation. The Board is satisfied there was substantial compliance with its remand orders for the claims besides the concurrent receipt claim, which is remanded. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to concurrent receipt of military retired pay and VA service-connected disability compensation is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From May 27, 2003, to June 30, 2003, the Veteran was in receipt of a temporary total rating for left knee TKA due to treatment requiring convalescence. 2. From June 8, 2004, to July 31, 2004, the Veteran was in receipt of a temporary total rating for right knee TKA due to treatment requiring convalescence. 3. From July 1, 2003 to June 30, 2004, the Veteran received a 100 percent disability evaluation for a left knee TKA. 4. From August 1, 2004 to July 31, 2005, the Veteran received a 100 percent disability evaluation for a right knee TKA. 5. Applicable regulations do not provide for a total temporary rating due to treatment requiring convalescence or the extension of same beyond an assigned 100 percent schedular rating for the same disability. CONCLUSIONS OF LAW 1. There is no legal basis for an additional temporary total evaluation under 38 C.F.R. § 4.30 or the extension of any temporary total rating, either before or after June 30, 2004, for convalescence following surgical treatment for the Veteran's service-connected left knee status post TKA. 38 C.F.R. § 4.30 (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. There is no legal basis for an additional temporary total evaluation under 38 C.F.R. § 4.30 or the extension of any temporary total rating, either before or after July 31, 2005, for convalescence following surgical treatment for the Veteran's service-connected right knee status post TKA. 38 C.F.R. § 4.30 (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. There is no legal basis for an additional 100 percent disability evaluation for a left TKA following convalescence. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5055 (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). 4. There is no legal basis for an additional 100 percent disability evaluation for a right TKA following convalescence. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5055 (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist In September 2004 and June 2009 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the claimant was expected to provide. In the June 2009 letter, the RO notified the Veteran of the process by which effective dates and disability ratings are established, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). Service treatment, private and VA medical records have been associated with the file. The Veteran has received VA examinations regarding his knees. The duties to notify and assist have been met. Legal Criteria and Analysis 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 (the knee is considered a major joint, pursuant to 38 C.F.R. § 4.5), 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. See 38 C.F.R. § 4.30(a) (2010). Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraphs (a)(1), (2), or (3), and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made only under § 4.30 (a)(2) or (3). See 38 C.F.R. § 4.30(b) (2010). The United States Court of Appeals for Veterans Claims (Court) has held that notations in the Veteran's medical records 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. In addition, the Court has determined that the inability to return to any employment indicates a need for continuing convalescence under 38 C.F.R. § 4.30. See Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); see also 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. A total knee replacement is a prosthetic implant that is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2010). For one year after a prosthetic replacement of the knee joint, the knee status post TKA is rated at 100 percent. After that point, if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, the rating is 60 percent. If there is intermittent degrees of residual weakness, pain or limitation of motion, this is rated under Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension) and 5262 (impairment of the tibia and fibula). The minimum rating after a knee replacement is 30 percent. The Veteran stated in his July 2003 claim that he was filing for "100 percent temporary compensation for a convalescence period following left knee replacement." In July 2009, after his right knee replacement, he submitted in a statement: "I am not seeking extension of the dates of my convalescent period. I am seeking payment at the 100 percent rate for the entire one year period following TKA for both my right and left knee." His statement also showed that he was confused about the interplay between his appeals regarding convalescent ratings and his appeal for concurrent military pay and VA compensation benefits (the latter is addressed in the remand). A May 27, 2003, Crestwood Medical Center operative report shows that the Veteran underwent a left total knee arthroplasty (TKA). Preoperative and postoperative diagnoses were the same; left knee osteoarthritis and posterior cruciate ligament instability. In accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5055, the Veteran's left knee TKA was rated at 100 percent until June 30, 2004; after that period he was rated at 30 percent. In September 2004, the Veteran claimed an increased rating for his right knee because he underwent a right TKA on June 8, 2004. He said he would apply for a convalescence rating as soon as medical evidence was available. In August 2005, he filed a notice of disagreement "for [VA's] decision to grant a convalescence rating effective only from January 1, 2005 through August 1, 2005." During the time period of January 1, 2005 through August 1, 2005, the Veteran received a 100 percent rating for his TKA under 38 C.F.R. § 4.71a, Diagnostic Code 5055. He received a 100 percent rating from June 8, 2004 to July 31, 2004 under § 4.30. Then he received a 100 percent rating from August 1, 2004 to July 31, 2005 under DC 5055. On his March 2006 appeal form, the Veteran stated he should be entitled to "a one year period of convalescence" for his right TKA. In a July 2009 statement, he said: "I am not seeking extension of the dates of my convalescent period. I am seeking payment at the 100 percent rate for the entire one year period following TKA for both my right and left knee." The Veteran underwent a right TKA on June 8, 2004. For the left knee TKA and right knee TKA, the Board finds that there is no evidence of record which supports an additional temporary total rating either before or after June 30, 2004 as to the left knee and July 31, 2005 as to the right knee, or the extension of any temporary total rating. The Veteran was assigned a month of convalescence under 38 C.F.R. § 4.30 (from May 27, 2003, to June 30, 2003, as to the left knee and from June 8, 2004 to July 31, 2004, as to the right knee). After those respective periods, he received a full year at the 100 percent rating, in compliance with 38 C.F.R. § 4.71a, Diagnostic Code 5055. However, Diagnostic Code 5055 only provides a 100 percent rating for one year following the knee replacement, and that rating is what the Veteran received for both his left and right knee TKA. In addition, the Board finds that 38 C.F.R. § 4.130 only provides for an extension of an initial temporary rating, not additional temporary ratings following the assignment of a 100 percent schedular rating. Therefore, the Board finds that no further increase is warranted as to either knee under either 38 C.F.R. § 4.130 or Diagnostic Code 5055 as a matter of law. See 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5055 (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an additional temporary total evaluation pursuant to 38 C.F.R. § 4.30 or the extension of any temporary total rating, before or after June 30, 2004, for a left TKA due to treatment requiring convalescence is denied. Entitlement to an additional temporary total evaluation pursuant to 38 C.F.R. § 4.30 or the extension of any temporary total rating, before or after July 31, 2005, for a right TKA due to treatment requiring convalescence is denied. Entitlement to an additional 100 percent disability evaluation for a left TKA following convalescence is denied. Entitlement to an additional 100 percent disability evaluation for a right TKA following convalescence is denied. REMAND In the November 2009 Board remand, the RO was asked to obtain an audit of the Veteran's compensation account from the RO's Finance Activity reflecting all due and paid amounts of VA compensation for the period from January 1, 2003, to January 1, 2006. In the audit, the reasons for paying or not paying the Veteran VA compensation, even at a reduced rate in accordance with CRDP/CSRC, were to be fully addressed. While there is some financial evidence on the left-hand side of the claims file, it does not address the whole period from January 1, 2003, to January 1, 2006. Also, there is a March 2003 audit in the file, but it does not address the entire period. A March 2007 letter showed the Veteran was entitled to a retroactive compensation payment, but only evidence from January to November 2004 was discussed. An explanation of Combat-Related Specialty Compensation (CRSC) and Concurrent Retirement and Disability Payment (CRDP) programs was provided. The CRSC program was established by the National Defense Authorization Act (NDAA) for Fiscal Year 2003, Pub.L. 107- 314, § 636, in December 2002. The purpose of the legislation was to allow receipt of partial or full military retired pay and VA disability compensation to eligible military retirees with combat-related disabilities. As of November 2004, it appears the only combat related disability for the Veteran was his service-connected posttraumatic stress disorder (PTSD) but there is nothing in the record that shows an actual determination being made as to which of the Veterans' many service-connected disabilities are directly attributable to combat or combat- related injuries. In general, CRDP is a program that is available to military retirees who served a minimum of 20 years creditable service, including service in the National Guard and Reserves. CRDP restores some or all of the military retired pay that was deducted due to receipt of VA service-connected disability compensation. Retirees must be rated 50 percent or more disabled by VA and, unlike CRSC, the disabilities do not have to be combat-related. Retirees are not required to apply for this benefit; enrollment is automatic. Qualified retirees with a 100 percent VA disability rating were subject to a phase-in period for payments only from January 1, 2004, to December 31, 2004. After December 31, 2004, such individuals are generally eligible for full payment of their military retired pay and VA disability compensation, with some limitations. See, 10 U.S.C.A. §§ 1413a, 1414 (West 2002 & Supp. 2010). The RO was instructed to obtain information from the Defense Finance and Accounting Service (DFAS), Department of the Navy, and any other indicated organization as to the amounts of military retired pay due and paid the appellant during the period from January 1, 2003, to January 1, 2006. The RO was to determine whether the Veteran was paid CRDP and/or CSRC and whether he was eligible to benefit from these programs. On remand, the RO should provide a full audit for the period of January 1, 2003, to January 1, 2006; obtain information from the DFAS, Department of the Navy or any other appropriate entity, and readjudciate the case. The RO should make a determination in a supplement statement of the case (SSOC) whether the Veteran was paid CRDP and/or CSRC and whether he was eligible to benefit from these programs. Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Provide a full audit of the Veteran's compensation account from the RO's finance activity reflecting all due and paid amounts of VA compensation for the period of January 1, 2003, to January 1, 2006. In the report of this audit, the reasons for paying or not paying the Veteran VA compensation, even at a reduced rate in accordance with CRDP/CSRC, should be fully addressed. 2. Obtain information from the Defense Finance and Accounting Service (DFAS), Department of the Navy, and any other appropriate entity as to the amounts of military retired pay due and paid to the Veteran during the period from January 1, 2003, to January 1, 2006. Determine, including based on this information, whether he would have been eligible and paid under both CRDP and CSRC. Also determine whether an overpayment of CRDP and CSRC would result. 3. Readjudicate the claim for concurrent receipt of VA disability compensation and military retirement pay under CRSC and CRDP. If this claim is not granted to the Veteran's satisfaction, send him and his representative a SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs