Citation Nr: 1310156 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-40 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an extension of a temporary total disability rating for surgery necessitating convalescence from April 1, 2010 to June 1, 2010. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 2005 to July 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). During the pendency of this appeal, the Veteran stated that she was claiming entitlement to a two-month extension for convalescence. Generally, a claimant may limit his/her claim or appeal to the issue of entitlement to a benefit that is less than the maximum allowed by law. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veteran expressly limited her claim, the Board will only address whether she is entitlement to two additional months of convalescence. FINDINGS OF FACT 1. The Veteran underwent surgery on her right hip on February 24, 2010. 2. In a July 2010 rating decision, a temporary total disability evaluation was assigned from February 24, 2010 to April 1, 2010, based on the need for convalescence following right hip surgery. 3. From April 1, 2010 to June 1, 2010, the Veteran's service-connected right hip was not manifested by, and did not demonstrate functional impairment comparable to, or more nearly approximate, 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). CONCLUSION OF LAW The criteria for an extension of a temporary total disability rating surgery from April 1, 2010 to June 1, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's April 2010 letter to the Veteran satisfied the duty to notify provisions. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of this claim, including the opportunity to present pertinent evidence. Additionally, the April 2010 letter to the Veteran notified her that she must submit, or request that VA obtain, evidence demonstrating that she underwent a surgical procedure and/or received medical treatment for a service-connected disability, which required a convalescence period of at least one month, or hospitalization of at least 21 days. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met with respect to the Veteran's claim, and, thus, no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. During an October 2011 Board hearing, the Veteran requested a 30-day extension to submit additional evidence, which was granted. Within that period, no additional evidence was submitted. There is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. Pursuant to her claim, the Veteran underwent a VA examination in May 2010 in order to ascertain the severity of post-operative service-connected right hip. The Veteran's claims file was not made available to the examiner for contemporaneous review; however, the examiner reviewed the Veteran's statements and administered a thorough clinical evaluation. Given that the examination was provided to ascertain the then current severity of the Veteran's service-connected right hip, and the examiner considered the Veteran's reported medical history which was consistent with the evidence of record, review of the Veteran's claims file was not essential. As such, the Board finds that the May 2010 VA examination was adequate for purposes of determined the Veteran's entitlement to a two-month extension of convalescence. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board October 2011 hearing, the undersigned Veterans Law Judge discussed the elements of the claim. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the Veterans Law Judge asked questions to ascertain the course and severity of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The Veteran requested and was granted a 30-day extension in order to submit additional evidence, but no such evidence was submitted. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Historically, the Veteran served on active duty from September 2005 to July 2006. In February 2010, the Veteran submitted a claim of entitlement to a temporary total rating based on convalescence following a February 24, 2010 right hip surgery. In a July 2010 rating decision, a temporary total rating was granted, effective February 24, 2010 to April 1, 2010. Thereafter, the Veteran perfected an appeal seeking a two-month extension of the convalescence period. This claim was then certified to the Board for appellate review. Under 38 C.F.R. § 4.30(a), 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 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. A temporary total rating may be extended 1, 2, or 3 months beyond the initial 3 months based on any of the criteria outlined above. 38 C.F.R. § 4.30(b)(1). Extensions of 1 or more months (up to 6 months) beyond the initial 6-month period may be made under paragraphs (a)(2) or (3) upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). The evidence demonstrated that the Veteran underwent right hip arthroscopy, femoroacetabular impingement correction, and labral refixation on February 24, 2010. She was discharged from the hospital the next day. A discharge report demonstrated that the Veteran experienced nausea, which was well-controlled by intravenous Zofran. The Veteran's pain was also controlled with oral pain medication. On postoperative day "zero," the Veteran was begun on a continuous passive movement machine for hip range of motion. While she was in bed, the Veteran was kept in internal rotation boots. On postoperative day "1," the Veteran was fitted for a Bledsoe brace and was seen in physical therapy. Thereafter, the she was deemed stable for discharge. The discharge instructions demonstrated that the Veteran was to wear the Bledsoe brace with ambulating for three weeks; wear the internal rotation boots while in bed for three weeks; not drive while on pain medication; shower on postoperative day "3," but refrain from soaking surgical incisions until postoperative day "14"; and undergo physical therapy for hip strengthening and range of motion. She was provided medications for spasms; constipation; nausea/vomiting; and a 14-day supply of non-steroidal anti-inflammatory, after which she was to take aspirin. On March 11, 2010, the Veteran appeared for a two-week postoperative follow-up appointment. A registered nurse observed that the Veteran was "doing quite well in therapy," was able to do her exercises, and that she would continue with her schedule of therapy. The registered nurse then indicated that the Veteran was done with her continuous passive motion exercises and the braces that she wore for the previous two weeks. According to an April 9, 2010 private treatment report, the Veteran appeared for another postoperative follow-up appointment. The doctor stated that the Veteran reported "doing well," but that she had a couple-week delay in her physical therapy secondary to insurance issues. During the appointment, the Veteran underwent physical therapy, which was "going well." The Veteran reported that she was only occasionally using ibuprofen for pain medication "as she [was] significantly improved compared to her preoperative status." Results of the Veteran's Hip Disability and Osteoarthritis Outcome Score (HOOS) were as follows: pain 65; symptoms 65; activities of daily living 76; sports and recreation 56.25; and quality of life 63 (on a scale of zero to 100, with 100 being the best). A UCLA activities score of 4 out 10 indicated that the veteran regularly participated in mild activities such as walking, limited housework, and limited shopping. Upon physical examination, the Veteran was in no acute distress; walked with a normal appearing gait; and gained the examination table "easily." Range of right hip motion was "not very irritated" and was to 90 degrees. The surgical portals were "healed," and her skin was "benign." Distal circulation, motion, and sensation were intact and her extensor hallucis longus, gastrosoleus, and tibialis anterior muscles were 5 out of 5. The assessment was that the Veteran was "doing well." On May 10, 2010, the Veteran underwent a VA examination. The Veteran reported that her current treatment for her service-connected right hip disability consisted of an exercise program to which she experienced a "fair" response and no side effects. A summary of joint symptoms included giving away; instability; pain; stiffness; weakness; incoordination; decreased motion; and episodes of locking several times per year, but less than monthly. The examiner indicated that the Veteran was only able to stand for between 15 and 30 minutes, and only able to walk from between 1/4 and one mile. She did not use an assistive device for ambulation. Upon physical examination, the following was revealed: normal gait; no evidence of abnormal weight bearing; no loss of bone or part of bone; and no inflammatory arthritis. Range of motion testing demonstrated that the Veteran was able to flex from zero to 120 degrees; extend from zero to 30 degrees; and abduct from zero to 40 degrees. The Veteran was also able to cross her right leg over her left and "toe out" greater than 15 degrees. There was no additional limitation of motion following repetitive motion. There was no ankylosis. During the examination, the Veteran reported that she had started working part-time at a day care "last week," but did not specify a date. Ultimately, the diagnosis was right hip labral tear, which the examiner found had "significant effects" on the Veteran's usual occupation. Specifically, the problems consisted of difficulties with lifting and carrying. With respect to activities of daily living, the examiner stated that the Veteran's right hip disability resulted in moderate impairment of her ability to perform chores, shop, exercise, and drive; and severe impairment of her ability to participate in sports and recreation, but did not impair her ability to travel, bathe, dress, toilet, or groom. A May 18, 2010 VA community-based outpatient clinic progress note demonstrated that the Veteran had been prescribed tramadol and propoxyphene for right hip pain. Upon physical examination, she was not in acute distress. No specific right hip findings were provided. A June 2, 2010 VA emergency consultation report demonstrated that the Veteran complained of symptoms relating to her feet. Significant, during the examination, the Veteran denied "any difficulty with walking." In her July 2010 notice of disagreement, the Veteran asserted that she was "out of work" until May 19, 2010 following the February 24, 2010 right hip surgery. She asserted that she was "housebound" during this period, unable to drive and unable to work. In her September 2010 substantive appeal, the Veteran stated that she wore a hip brace for four weeks, not three weeks, following the February 24, 2010 surgery. Thereafter, the Veteran stated that she used crutches for two months. She then stated that she was unable to drive for three months due to pain elicited when depressing the gas pedal with her right foot. She also reported that she remembered only doing the "basic" in physical therapy on March 11, 2010, and that she was not doing "quite well." Likewise, the Veteran endorsed doing better on April 9, 2010, but would not classify herself as "doing well." She characterized herself at that point as being "far from recovered." She reiterated her claim of entitlement to a two-month extension of convalescences, basing that claim on the "numerous restrictions" and pain she experienced during that period. In an October 2011 letter, Patrick M. Morgan, M.D., the doctor that performed the February 24, 2010 right hip operation on the Veteran, indicated that the Veteran appeared for postoperative follow-up appointments at two weeks, six weeks, 12 weeks, and five months. Due to issues with the Veteran's transportation and insurance, Dr. Morgan stated that the experienced a "3 week delay" in the middle of her postoperative course of physical therapy, which "pushed back her post-operative recovery." During the 12-week follow-up appointment on May 21, 2010, Dr. Morgan stated that the Veteran reported being able to return to work on a part-time basis. Although this letter was submitted after certification of the Veteran's appeal to the Board, the Veteran submitted a contemporaneous waiver of RO review and, thus, it will be considered herein. 38 C.F.R. § 20.1304 (2012). In October 2010, the Veteran provided testimony at a Board hearing. The Veteran asserted that, during the postoperative follow-up appointments, she responded to questions asked by the doctor and the doctor would write them down. The doctor would then read her responses back. The Veteran claimed that the responses that were read back to her were not accurate. The Veteran then stated that she was not doing "quite well" at the time of the March 11, 2010 appointment. She stated that she was still unable to drive and that she was doing "okay" given the short amount of time that had passed since the surgery. She then stated that she was no longer on crutches at the time of the March 11, 2010 appointment. However, the Veteran later testified that she utilized crutches for about one month following the February 24, 2010 operation. The Veteran then reported that she was unable to take pain medication, "narcotics," or ibuprofen because of a gastrointestinal condition. The Veteran used ibuprofen occasionally, but stated that it was not helpful in managing her pain. The Veteran stated that the February 24, 2010 corrected her limp, but that she still experienced pain and that she was unable to drive "at that point in time." The Veteran endorsed the use of a brace following the February 24, 2010 surgery for four to six weeks (i.e., until between March 24 and April 7). She stated that she was able to start taking the brace off after week four. She was instructed to remove the brace in order to work on increasing her range of right hip motion. Without the brace, the Veteran stated that her pain level increased. She also stated that she gradually stopped using "night boots" that kept her hips aligned. With respect to transportation to and from her physical therapy appointments, the Veteran indicated that either her boyfriend or mother drove her, as she was unable to drive. The Veteran asserted that the doctor instructed her to be extremely careful after the surgery because she was unable to predict how long the recovery process would take. In essence, the Veteran contended that she is entitled to a two-month extension of convalescence, from April 1, 2010 to June 1, 2010, due to pain, which she claimed she could not controll with medication due to a gastrointestinal condition. Further, the Veteran asserted that she was "housebound" because she was unable to drive during this period, and neither her boyfriend nor her mother was consistently available to drive her places. Moreover, the Veteran claimed that her recovery was delayed three weeks due to insurance issues, and that she was unable to work, even on a part-time basis, until sometime in the middle of May 2010. Preliminarily, with respect to the Veteran's intolerance to pain medication, the record clearly indicated that the Veteran experienced a gastrointestinal condition. However, the February 25, 2010 discharge report indicated that the Veteran was prescribed pain medication. Further, the May 2010 VA community-based outpatient clinic report demonstrated that the Veteran had been prescribed two different pain medications, tramadol and propoxyphene, and that she was receiving a refill prescription for tramadol. With respect to the tramadol, the report demonstrated that it was to be taken three times each day, or only once as needed. She reported that she took it three to four days in the previous week because she had twisted her right hip. With respect to the propoxyphene, it was noted that she was prescribed this medication to take "after surgery" and that she would take it "some nights" if she experienced "real bad" pain. As such, the Board finds that the Veteran's statements as to intolerance of pain medication are not credible and, thus, will not be considered herein. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (noting that the credibility of statements may be impeached by inconsistent statements and consistency with other evidence). An extension of convalescence is only appropriate if the evidence establishes or more nearly approximates functional impairment comparable to 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, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches or immobilization by cast. 38 C.F.R. §§ 4.7, 4.30(b)(2) (2012). The April 9, 2010 treatment report demonstrated that the Veteran's surgical portals were healed and, during the October 2011 Board hearing, the Veteran denied experiencing any issues with her surgical wounds. The February 24, 2010 operation did not involve an amputation. The Veteran was provided a brace consequent to the February 24, 2010 operation and, according to the discharge report, was initially instructed to wear it for three weeks. Moreover, the March 11, 2010 treatment report indicated that the Veteran was "done" with the braces. Even if the Veteran wore the brace for four to six weeks, as she contended, this marks sometime between March 24 and April 7, 2010. However, the Veteran stated that she started taking the brace off after week four and, thus, the joint was no longer being immobilized as of March 24, 2010. The evidence of record did not demonstrate that the Veteran was prescribed or that she used a body cast, and her right hip was never immobilized by a cast. Although the Veteran felt as though she was "housebound," this was simply due to the fact that she did not have someone to drive her places. There was no indication that leaving her home would have interfered with her recovery or aggravated her symptoms. This does not rise to the level of a "necessity" of being "confined" to her house. With respect to the use of crutches, during the pendency of this appeal, the Veteran stated that she utilized crutches for various lengths of time following the February 24, 2010 operation. In her September 2010 substantive appeal, she asserted that she used crutches for two months. During the October 2010 Board hearing, the Veteran first testified that she had stopped using crutches by the time of the March 11, 2010 follow-up appointment, but later testified that she utilized crutches for about one month, marking approximately March 24, 2010. Further, the February 25, 2010 discharge report did not indicate that the Veteran was provided crutches or that she was instructed to utilize crutches. Significantly, the Veteran was instructed to wear a brace "during ambulation," which signifies that the Veteran was permitted to walk without the aid of crutches. Given the conflicting nature of her reports and the contradictory evidence of record, the Board finds that the Veteran's statements as to the usage of crutches following the February 24, 2010 operation to be not credible and, thus, will not be considered herein. Caluza, 7 Vet. App. at 511. In sum, the criteria necessary for an extension of the Veteran's temporary total rating under 38 C.F.R. § 4.30(b)(2) were not present from April 1, 2010 to June 1, 2010. Consequently, the claim for an extension of the temporary total rating must be denied. ORDER Entitlement to an extension of a temporary total disability rating, pursuant to 38 C.F.R. § 4.30, from April 1, 2010 to June 1, 2010, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs