Citation Nr: 1320263 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-48 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to extension (beyond February 28, 2009) of a temporary total convalescence rating for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1999 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO), which granted a temporary total rating following the Veteran's right knee surgery effective May 16, 2008 until July 1, 2008. An October 2008 rating decision extended the temporary total rating until October 1, 2008. A February 2009 rating decision granted a further extension of the temporary total rating until January 1, 2009. An August 2009 rating decision extended the temporary total rating until March 1, 2009. In his December 2009 VA Form 9, substantive appeal, the Veteran requested a hearing before the Board. A Board videoconference hearing was scheduled in March 2011; the Veteran failed to appear (and did not provide cause). FINDING OF FACT The Veteran's right knee surgery on May 16, 2008 is not shown to have required convalescence beyond February 28, 2009. CONCLUSION OF LAW Extension beyond February 28, 2009 of a temporary total convalescence rating following right knee surgery on May 16, 2008 is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A claim for a temporary total rating based on the need for convalescence is, in essence, a claim for increase. Letters in May 2008, June 2009, and March 2010 notified the Veteran of the evidence necessary to substantiate such claim. He has had ample opportunity to respond/supplement the record (and his submissions reflect an awareness of what is needed). It is not alleged that notice in this case was less than adequate. All available pertinent medical evidence (records pertaining to the surgery on May 16, 2008, and recovery) was obtained. The Veteran underwent VA examinations in July 2008 and February 2009. While the examiners were not asked to (and did not) provide opinions specifically on the critical question in this case (i.e., whether the May 16, 2008 surgery required convalescence beyond February 28, 2009), both examination reports discussed the May 2008 surgery, the Veteran's post-operative treatment, and the residual functional impairment. Together with the treatment records, the examination reports provide evidence adequate to adjudicate the instant claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background, Legal Criteria and Analysis Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals such as incomplete healed surgical wounds, therapeutic immobilization of a 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 (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). A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted (under the conditions discussed below) for a period of one, two, or three months. Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Extensions of one, two, or three months beyond the initial three months may be granted under the provisions of 38 C.F.R. § 4.30(a) (1), (2), or (3), (noted above) and further extensions of one or more months, up to six months, may only be made under the provisions of 38 C.F.R. § 4.30(a) (2) or (3) (e.g., where there are severe postoperative residuals or immobilization) upon approval from the Veterans Service Center Manager. 38 C.F.R. § .30(b). Notations in the medical record as to a 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. See Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden, 11 Vet. App. at 430 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)). The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id. (citing WEBSTER'S MEDICAL DESK DICTIONARY 606 (1986)). In summary, a temporary total evaluation may be assigned for up to a maximum of twelve months, with approval of the Veterans Service Center Manager, if the criteria of 38 C.F.R. § 4.30(a) and (b) are met. On May 16, 2008, the Veteran underwent arthroscopic medial plaque resection surgery to repair a service-connected right knee disability, characterized as right knee chondromalacia with quadriceps tendonitis. By various rating decisions, he was granted a temporary total rating for convalescence following this procedure through March 1, 2009. He seeks an extension of the temporary total rating from March 1, 2009 through May 7, 2009. Following the May 16, 2008 surgery, the Veteran was noted to be doing well. VA treatment records note residual swelling; flexion was measured to 90 degrees; and the portal scars were healing well. An exercise program was prescribed, and the Veteran was notified that he could return to light duty work in two weeks, and regular duty work in three weeks. A May 27, 2008 note states he was permitted to return to work on June 9, 2008 with mild standing restrictions, but no longer than 5 hours/day, and no squatting or lifting greater than 25 pounds. He was notified he could return to full duty on June 16, 2008. In June 2008, the Veteran was provided an Excused from Work or School slip which states he was to remain on five hour days until reevaluation. On reevaluation later in June 2008, he reported that he worked in an auto parts store for five hours a day, and stated that his knee throbbed by the end of the five hours. It was noted that he wore a knee brace for instability. Another Excused from Work or School slip indicating the Veteran should remain on five hour work days until he was seen by an orthopedic surgeon in July was provided to the Veteran's employer. On July 2008 orthopedic examination, the Veteran noted progressive pain in the right knee towards the end of the day and that his knee felt more lax and weak. He also reported that he was working only 25 hours per week and did not want to further reduce his hours. It was noted that he relied on a knee brace in the afternoons because of the progressive nature of the pain and weakness. Additional hamstring strengthening therapy was ordered. On July 2008 VA examination in connection with a claim for an increased rating for the right knee disability it was noted that the Veteran underwent arthroscopic surgery of the right knee. It was further noted a post-operative exercise program was prescribed and that he was able to return to full duty in three weeks. The Veteran described stabbing pain rated between 8 to 9 (on a scale of 10) in the evening and 3 in the morning. He reported swelling, shifting of the knee, and instability. He reported that he was an assistant manager at an auto parts store and was only able to work part-time. He stated he could not drive a race car, use his small mower to cut grass because of vibrations, or pick up his daughter. On examination, it was noted that there was no significant gait disturbance. No functional limitations on standing or walking were noted; however, there was mild guarding with ambulation. It was noted that there were three well healed surgical portal holes. There was no redness, swelling, or heat. There was increased pain on repeated use, but no additional loss of motion after multiple repetitions. No fatigue, weakness or incoordination was shown. There was reduced endurance on prolonged standing and walking. Range of motion studies showed flexion to 95 degrees (0-140 is normal) and normal extension. Tests for stability were normal. The examiner concluded that there was moderate functional impact due to pain on ambulation and prolonged weight bearing. In August 2008 the Veteran was seen for a knee ache. He stated the knee was less painful, but he still used a knee brace. It was noted that he continued to exercise as instructed by physical therapy. In September 2008 Veteran presented with continued complaints of worsening pain. He indicated that there was a slow progression of pain in his knee during the workday, and that his medial unloader brace assisted him in his work duties as they required a lot of standing throughout the day. He stated that when he was scheduled to close the store, he noticed an inordinate amount of pain and trouble sleeping that night. The orthopedic surgeon prescribed viscosupplementation injections of the right knee. It was noted that the Veteran was to stay off work for six weeks and then progress back to his current job once he received the injections. An Excused from Work or School slip dated September 30, 2008 notes that the Veteran was to remain on light duty for six weeks, and return to full physical activity on November 15, 2008. An October 2008 VA treatment record notes that the Veteran lived in a two-story house, drove, and was gainfully employed (limited to 25 hours/week due his conditions), as a manager of an auto parts store, which required a great deal of standing. In October 2008, he was seen in an emergency room for a left eye injury sustained drilling over- head. In November 2008 it was noted the Veteran still worked a reduced schedule (limited to 5 hours/day, 25 hours/week) because prolonged standing and walking increased his pain. An Excused from Work or School slip dated November 5, 2008 continued the Veteran's work restrictions (25 hours/week, no more than 5 hours/day, and lifting no more than 25 pounds) for an additional six weeks, through December 17, 2008. A January 29, 2009 Excused from Work or School slip instructed that the Veteran remain on light duty until reevaluated on February 17, 2009. On February 2009 examination, he reported pain and looseness had not improved; he wore a knee brace at all times; his knee buckled under him; and he still worked only 5 hours a day because his job required him to walk or stand. He was instructed to continue to wear the right knee brace, but was permitted to resume activity to his tolerance. On February 2009 VA examination the Veteran described his right knee pain as a sharp pain while walking (rated at 5 on a scale of 10 normally, but 7 or 8 at its worst). He reported that pain woke him at night, and that weakness and pain increased during the day. He wore a knee brace during the day and removed it at night; he used a cane in the evening. He related that he worked part-time at an auto supply store, working only 25 hours/week. He reported that he could not play baseball with his daughter, do maintenance on his car, cut wood for heating, or work on the family farm, and rested for 1 to 2 hours after work when he was unable to do anything. On examination, it was noted that the Veteran walked with an antalgic gait that became more unstable as he walked more than 20 feet; he ambulated without assistance. Range of motion studies showed flexion to 80 degrees and normal extension. Tests for stability were normal; there was no additional loss of motion after repetitive testing; but there were increased fatigue, and weakness, and reduced endurance, on prolonged standing and walking. In February 2009, the Veteran submitted a statement reiterating that his right knee disability continued to affect his ability to work, and that he was forced to make the decision to either quit his job or take another reduction of position at his current employment. March 2009 and April 2009 VA treatment records show the Veteran continued to work the counter at an auto parts store. In May 2009, the Veteran was scheduled for another right knee surgery (the matter of the rating assigned following that surgery is not before the Board). Under the governing regulatory criteria (as they apply in the circumstances of this case), the Veteran may establish entitlement to a temporary total (convalescence) rating beyond February 28, 2009 (and until May 7, 2009) if during such time there were severe postoperative residuals, immobilization by cast, house confinement, or the necessity to use a wheelchair or non-weight bearing on crutches. The record does not show that any of these requirements were met. There were no severe postoperative residuals and no unhealed surgical wounds (all surgical wounds were noted to be well-healed on July 2008 examination). Although he used a knee brace, it was for support/instability (to prevent weakening)(and not for immobilization, i.e., rendering the knee incapable of movement) See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003). During the March 1, 2009 to May 7, 2009 interval at issue, the Veteran was working (albeit part-time), driving, ambulating (with brace, and cane at times), and was clearly not confined to the premises of his home. As he was ambulating with a cane and knee brace, he did not require use of a wheelchair or non-weight bearing crutches. The Board notes that the assignment of a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continued to be symptomatic following surgery; there must be a need for convalescence, as that term is understood. In summary, none of the criteria that would warrant extension of the Veteran's temporary total convalescence rating (following May 2008 surgery) beyond February 28, 2009 are met. Therefore, there is no basis for seeking Veterans Service Center Manager approval for such extension. The preponderance of the evidence is against the Veteran's claim, therefore, the reasonable doubt provisions of 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, 4.3 do not apply. The appeal seeking a further extension of the temporary total rating must be denied. ORDER The appeal seeking an extension of a temporary total convalescence rating beyond February 28, 2009 is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs