Citation Nr: 1320986 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-06 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and form June 30, 2009, to September 30, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had a period of active duty for training (ACDUTRA) from August 1957 to February 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted the Veteran's claim for a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability, assigning a 100 percent rating for this disability (which was characterized as post-operative residuals of a left ankle sprain) from March 9, 2005, to April 30, 2006. The RO also assigned a 20 percent rating effective May 1, 2006, for this disability. The Veteran disagreed with this decision in June 2006, seeking entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond April 30, 2006, and a disability rating greater than 20 percent effective May 1, 2006, for this disability. In a February 2007 rating decision, the RO assigned a 40 percent rating effective May 1, 2006, for the Veteran's service-connected left ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5056 (ankle replacement (prosthesis)). See 38 C.F.R. § 4.71a, DC 5056 (2012). The Board notes in this regard that, under DC 5056, a 40 percent rating is the maximum schedular rating without prosthetic replacement of the ankle joint. A 100 percent rating is assigned for 1 year following implantation of prosthesis. Id. Thus, the 40 percent rating assigned for this disability in the February 2007 rating decision is the maximum schedular rating available for this disability and an increased rating claim for a left ankle disability is no longer in appellate status. The February 2007 rating decision also was not appealed and became final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). In a July 2009 rating decision, the RO assigned additional temporary total ratings based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability, assigning a 100 percent rating from November 15, 2006, to February 28, 2007, and from September 24, 2008, to November 30, 2008. The RO also continued the 40 percent rating for the Veteran's service-connected left ankle disability effective March 1, 2007, and effective December 1, 2008. A Travel Board hearing was held at the RO in August 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In a February 2011 rating decision, the RO denied the Veteran's claim for a disability rating greater than 40 percent for a left ankle disability. This decision was not appealed and became final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). In December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the RO/AMC consider additional relevant treatment records (a record of VA examination in April 2011) that were not considered in its most recent adjudication of the Veteran's currently appealed claim in February 2011. The RO issued a Supplement Statement of the Case (SSOC) in January 2013 in which it considered this evidence and continued the denial of the Veteran's currently appealed claim. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a March 2013 rating decision, the RO assigned a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability from June 30, 2009, to September 30, 2011. The RO also assigned a 40 percent rating effective October 1, 2011, for this disability. This, the issue on appeal is as stated on the title page of this decision. FINDINGS OF ACT 1. The record evidence shows that the Veteran had a left ankle arthroplasty on March 9, 2005. 2. The record evidence shows that the Veteran had surgical revision of the talar component of the prior left ankle arthroplasty on November 15, 2006. 3. The record evidence shows that, on outpatient treatment on February 6, 2007, the Veteran was advised to discontinue use of a cam walker boot and to ambulate as tolerated on his left ankle; this is considered to be the end of his convalescence following surgical revision of the talar component of the prior left ankle arthroplasty on November 15, 2006. 4. The record evidence shows that the Veteran had surgery to remove his left ankle arthroplasty and to fuse his left ankle on September 24, 2008. 5. The record evidence indicates that, on November 4, 2008, the Veteran was advised that he could return to work or school; this is considered to be the end of his convalescence following surgical removal of the left ankle arthroplasty and fusion of the left ankle on September 24, 2008. 6. The record evidence shows that, on July 1, 2009, the Veteran had surgery to remove a left total ankle arthroplasty. 7. The record evidence shows that, on August 25, 2010, the Veteran had surgery to remove hardware in his left ankle after being diagnosed as having left ankle hardware pain. 8. The record evidence shows that, on September 29, 2010, the Veteran had surgery for a secondary closure of the left ankle wound due to wound dehiscence of the left ankle. CONCLUSION OF LAW The criteria for a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in May 2005 and in March 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit evidence demonstrating his entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board observes that the Veteran seeks a total disability rating for his service-connected left ankle disability effective as of the date he was awarded service connection for this disability. In other words, the Veteran appears to be seeking an increased rating for his service-connected left ankle disability beyond the time periods where he currently receives a temporary total disability rating. The Board also observes that, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that, for an increased-compensation claim, § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Veteran was provided with appropriate Vazquez-Flores notice in October 2008. The Veteran has not alleged that he received inadequate VCAA notice in this case. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). The Board concludes that, because there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no additional VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding VCAA notice not required where there is no reasonable possibility that additional development will aid the Veteran). As will be explained below in greater detail, the evidence does not support granting a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the March 2005 VCAA notice letter was issued prior to the currently appealed rating decision issued in August 2005; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Board notes in this regard that, in response to a request from the RO for the Veteran's SSA records, SSA informed VA in March 2007 that the Veteran was not receiving of Social Security disability benefits. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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 hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issue as entitlement to a temporary total rating based on the need for post-surgical convalescence. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about his left ankle surgeries and periods of surgical convalescence. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence which demonstrated his entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to October 1, 2011, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the currently appealed claim, the Board notes that there is no duty to provide an examination or a medical opinion because such evidence would not be relevant to this claim. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Temporary Total Disability Rating Claim The Veteran contends that he is entitled to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011. He essentially contends that his service-connected left ankle disability has been totally disabling since he was awarded service connection for this disability, entitling him to a temporary total rating since that date. Law and Regulations A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. As relevant to the Veteran's currently appealed claim, a temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2012). A temporary 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). Factual Background On private outpatient treatment with S.W.S., M.D., in September 1999, the Veteran's complaints included left ankle pain. He reported injuring his left ankle "in the military 15 years ago" and prior left ankle surgery "which seemed to help stabilize it. One month ago, he reinjured it and it became black and blue and largely swollen. It seems less trustworthy now and wants to give out. It buckles unannounced." Physical examination showed 4-5 millimeters (mm) of excursion of the anterior talofibular ligament, 5/5 peroneal muscle strength, and normal ankle motion. X-rays of the Veteran's left ankle showed "a staple in the left talus consistent with previous ligament reconstruction," a congruent ankle, an os subtibiale "which is a small ossicle under the medial malleolus consistent with previous injury there," and an irregularity in the distal fibula "consistent with previous ligament surgery and bone tunnels made." The radiologist's impressions included status-post ligament reconstruction of the lateral ligament of the left ankle. Dr. S.W.S. stated that the Veteran's x-rays "show[] a fairly normal ankle, except he has a staple in the lateral talus consistent with previous ankle stabilization surgery." The Veteran was interested in undergoing another left ankle surgical repair "as it worked well for him before." In November 1999, it was noted that the Veteran was being post-operatively following a "left Brostrom procedure." Objective examination showed an ankle wound which was "healed nicely." The Veteran had been unable to use crutches "and has been putting weight on the splints on the left side." The Veteran was put in a removable cast boot with gentle ankle motion once a day and weight bearing "to tolerance." In February 2000, the Veteran "states that the ankle feels good now. It is nice and stable and is not giving him any pain despite the fact that he had a wide strip of wear on the talus." Objective examination of the left ankle showed "about" 1-2 mm of laxity of the anterior talofibular ligament and no swelling, tenderness, or effusion. The Veteran was wearing dress shoes. The assessment was that the Veteran's "Brostrom repair seems to be functioning properly." In October 2003, the Veteran's complaints included left ankle pain. The Veteran's Brostrom procedure "remains very solid and trustworthy but he has been tender below the fibula and sinus tarsi area." An injection of the left ankle was planned. Physical examination of the left ankle showed it was "stable but tender in the sinus tarsi" and 5/5 motor strength in all extremities. The assessment included sinus tarsi syndrome. The Veteran received an injection of the left sinus tarsi. In February 2004, the Veteran complained of twisting his left ankle "because he stepped on some type of a bolt that was mounted in cement." An old left ankle injury was noted along with problems "shifting a dirt bike and lifting the pedal up. He feels things are improving and has just a heavy elastic ankle brace that he has been wearing, and he is walking in regular shoes." Physical examination showed "a very good range of motion, a little bit of thickening of the soft tissues, and enlargement of the bone consistent with osteoarthritis," no acute effusion, tenderness on the deltoid which was stable, and stable and non-tender lateral ligaments. X-rays of the left ankle were "consistent with previous injury that has healed with a staple in the talus. There is posttraumatic arthritis with medial and anterior osteophytes and lateral and anterior bone-on-bone contact." The assessment was medial ankle sprain. "He may have stirred up this asymptomatic bone-on-bone arthritis that is posttraumatic from a previous injury." In March 2004, the Veteran's complaints included arthritic pain and swelling in the left ankle. Physical examination of the left ankle showed some synovitis, "puffiness," warmth, and "bone-on-bone contact in the lateral gutter and lateral mortise." The Veteran's left ankle was injected with corticosteroid and Marcaine anterolaterally. In May 2004, the Veteran's complaints included bone-on-bone left ankle arthritis. He stated that the injection he received "did not do much. He has no daily activity pain, but if he mows his lawn it bothers him. He can ride his dirt bike, and it does not bother him." Dr. S.W.S. stated that "an ankle brace would be helpful under some boots" for the Veteran's physical activities. He also discussed a total ankle replacement versus fusion "in the future, but he is not really at that point. He does not have constant pain that would be helped with anti-inflammatories. I think he just needs mechanical stabilization." In July 2004, the Veteran complained of increasing progressive left ankle pain on the anterior to lateral aspect since a twisting injury in January 2004. The Veteran "is very active, likes to ride a dirt bike and has sustained multiple injuries." A history of left ankle surgeries in 1982 and 1999 was noted. It was noted that the Veteran had been "doing well" since his most recent surgery in 1999 until his January 2004 injury. Physical examination showed he was healthy and in no acute distress, no malalignment of the hindfoot or forefoot when standing, intact sensation, mild anterior drawer on subtalar motion, minimal ankle motion, and pain "located to the anterolateral aspect of his ankle." X-rays showed "evidence of prior surgery with a single staple in the talus," advanced osteoarthritis of the ankle joint with talar tilt and complete loss of cartilage in lateral and anterior aspects of the joint. The Veteran's subtalar joint "looks free of arthritis, except for posterior osteophyte." The assessment was tibiotalar ankle arthrosis. The Veteran was advised to undergo either an ankle fusion or ankle arthroplasty. On VA examination in September 2004, the Veteran complained of increased left ankle pain since his most recent surgical procedure "approximately 10 years ago." A history of left ankle injuries and surgeries since service was reported by the Veteran. The Veteran "is now limited to walking one block with difficulty." He used no assistive devices. He stopped golfing and other sports in which he previously had been active. The Veteran also stated that "repetitive activities result in further loss of range of motion by at least 50%." He denied any specific flare-ups other than repetitive activities "and being on his feet." He also reported losing strength in his ankle. He stated further that ankle joint replacement or fusion was recommended "to minimize pain." Physical examination showed a significant limp. Physical examination of the left ankle showed soft tissue swelling in the inferior aspect, a well-healed lateral malleolus with slightly tender scarring consistent with prior surgeries. Range of motion testing of the left ankle showed dorsiflexion to 15 degrees, plantar flexion to 35 degrees, inversion to 20 degrees, and eversion to 30 degrees. There was no gross ligamentous instability. Repetitive range of motion testing "did not result in further loss of range of motion but did increase his discomfort." X-rays showed moderate osteoarthritis including both the medial and lateral malleoli and tibiotalar articulation. The impression was degenerative changes of the left ankle "since his operative procedures, related to any injury which occurred during the military service, resulting in moderate functional impairment." Private x-rays of the Veteran's left ankle taken on March 8, 2005, the day before his total left ankle arthroplasty surgery showed slightly increased tibiotalar joint narrowing. The Veteran was hospitalized from March 9-12, 2005, for left post-traumatic ankle arthrosis and a left total ankle arthroplasty. (Although the surgical report refers to the Veteran's right ankle surgery, it is clear that the Veteran had left ankle surgery during this hospitalization). His surgery occurred on March 9, 2005. It was uneventful without intraoperative complications. X-rays taken during surgery showed a "total ankle arthroplasty being performed at the left ankle. The hardware is intact. There has been tibiofibular syndesmosis with plate and screws. No fractures." The Veteran was advised to "remain non-weightbearing on his left ankle." He was to be transferred in to a fiberglass cast in 2 weeks and then immobilized in an air cast Cam walker 3-4 weeks later. On private outpatient treatment on March 24, 2005, it was noted that the Veteran was 2 weeks post-surgery. "He returns today to have his cast removed. He has had no discomfort." Objective examination showed a clean surgical wound with well-healed incisions and "residual swelling through the area of his ankle replacement." A new fiberglass cast was provided "with his foot in plantar grade position." The plan was for the Veteran to perform touch-down weightbearing with rollerback and for removal of cast in 4 weeks' time with an air cast provided at that time and further weightbearing. An "Activity Restriction/Return To Work Form" dated on March 25, 2005, indicates that the Veteran was advised that he could return to school/work on June 13, 2005, for modified duty "as patient can tolerate." On outpatient treatment in April 2005, the Veteran "again indicates little to no pain." He was 6 weeks status-post left total ankle arthroplasty "with incidental talar fracture from removal of hardware." Objective examination showed 20-30 degrees of motion "without any effort at all." X-rays showed left total ankle arthroplasty "in expected position. No evidence of loosening or infection." The Veteran had a period of outpatient physical therapy in April and May 2005 following his left total ankle arthroplasty. The Veteran reported "that he has been feeling well and is pleased with his foot. He has been maintaining nonweightbearing on the foot." Range of motion testing showed left ankle dorsiflexion to -8 degrees "with the knee straight, increasing to neutral with the knee bent," and left ankle plantar flexion to 30 degrees. Private x-rays taken in May and August 2005 showed alignment "from the distal tibia to the calcaneus, across the ankle arthroplasty is as expected. At this time, there is no radiographic evidence for complication associated with the prosthesis." On private outpatient treatment in March 2006, the Veteran reported that "he is doing much better since before surgery but he still has some significant limitations. He still has a fair bit of pain with activity and is still using Razor rolling scooter to help him get around." He was "a year out status post left total ankle arthroplasty." He rated his pain as 5/10 on a pain scale. Physical examination showed a well-healed incision on the dorsum of the foot, "some very slight warmth and very slight swelling of the ankle," 5/5 strength, and intact sensation. Range of motion testing showed "about 5 degrees of dorsiflexion to 25 degrees of plantar flexion." There was "an audible and palpable clunking with range of motion." X-rays showed a total ankle arthroplasty "in gross anatomic alignment. The distal tibia and fibular have been fused. No significant interval change." The assessment was status-post left total ankle arthroplasty "with some continued complaints of pain, although improving." The Veteran was advised to return in 1 year "or sooner if he should have any problems." In April 2006, the Veteran submitted several lay statements in support of his claim. His wife asserted in her lay statement that the Veteran could no longer maintain their home. The Veteran also was unable to go with her to the grocery store or go walking or dancing. "So we both have lost a lot of our companionship." He had fallen out of bed several times due to his left ankle giving way. His ankle "swells and causes so much pain it[] just becomes unbearable for him." He also difficulty getting out of a car because "his ankle gets stiff in just a very short amount of time from sitting and it[] makes it difficult for him to walk." In a separate lay statement, S.C.H. stated that she had seen the Veteran have difficulty walking since approximately 1996 when he started limping. P.H. asserted in his lay statement that, since he had become friends with the Veteran in 1981, his "injury to his ankle has prohibited him from participating in many local activities. [The Veteran] is unable to do any physical exercise that puts weight or stress on his ankle." On private outpatient treatment in May 2006, the Veteran complained of continued significant medial and lateral ankle pain with weightbearing. He was 14 months status-post left total ankle arthroplasty. "He is helped somewhat by nonsteroidal anti-inflammatory drugs but is still quite severely limited." The Veteran rated his pain with weightbearing as 9/10 on a pain scale (with 10/10 being the worst imaginable pain) and as 5/10 at rest. "He is very limited in his ability to perform any recreational activities or activities around the house. He states that he is limping with every step." Physical examination of the left ankle in May 2006 showed "some swelling about the ankle," no warmth, "quite good motion at the ankle as he works through the pain, slight valgus in the heel on weightbearing, good strength in the perineal musculature and posterior tibial and tibialis anterior, no sensory deficits, an antalgic gait on weightbearing, and "difficulty moving about the examination room today." Range of motion testing of the left ankle showed dorsiflexion to neutral, plantar flexion to 30 degrees, and "a subtalar arc of motion of 40 degrees." X-rays showed "a somewhat anterior position of both his tibiotalar components" and no clear evidence of subsidence or loosening of the components. "[The Veteran] has never been able to achieve pain free functioning after [total ankle arthroplasty] and is at his stead state with respect to his last evaluation. His pain unfortunately with weightbearing is in the range of 9/10 and this is severely limiting to him." The assessment was 14 months status-post total ankle arthroplasty. The Veteran was advised to undergo surgical reevaluation of "the fixation of his components, as he may have possible loosening of his talar component." In August 2006, the Veteran's complaints included "some pain in his left lower extremity on the medial and lateral aspects of his ankle." His pain was worse in the mornings. He also experienced soreness "around his left ankle" after driving in a car "for a while." Objective examination of the left lower extremity showed well-healed surgical incisions with erythema or drainage, intact sensation, and some slight warmth "and a small amount of swelling" in the left ankle. Range of motion testing of the left ankle showed dorsiflexion to 10 degrees "with the knee extended" and plantar flexion to 30 degrees. There was good subtalar motion and tenderness to palpation over the lateral fibular plate. X-rays showed "the tibial component of his ankle arthroplasty appears in good position, with adequate bony ingrowth," slight subsidence of the talar component with "some lucency around the anterior aspect of the component," a broken proximal syndesmosis screw, a loose screw in the left fibular plate, and a nicely healed fusion of the syndesmosis. The assessment was continued left ankle pain status-post left total ankle arthroplasty "about 16 months ago." The Veteran was advised that he could undergo "a revision of the talar component of his total ankle arthroplasty, or we could try removing his fibular hardware as well as his syndesmosis screw, to see if this helps decrease some of his medial and lateral ankle pain." The Veteran agreed to undergo hardware removal and would be "placed in a Cam Walker boot for about two weeks afterwards but he will be able to weight bear as tolerated after the surgery." In September 2006, the Veteran stated that he "he had been doing well, but is now having some pain. A lot of this pain is in the anterior part of his ankle and then he also gets some in the posterior part of the ankle." The Veteran was "quite active and walks frequently." He advised the private physician that he wanted to undergo a surgical revision "if that is what is necessary." Physical examination of the left ankle showed well-healed incisions, intact sensation, a good range of motion, a bit of a tendency to rotate externally through the leg when he walked, no varus or valgus heel on standing, an "excellent" alignment, and a moderate amount of swelling in the ankle joint. X-rays showed a total ankle arthroplasty "in unchanged position. No complication is evident." The assessment was probable loosening of total ankle arthroplasty and painful hardware. The Veteran agreed to undergo surgery to remove hardware, ankle cheilectomy, and revision of the talar component of the ankle arthroplasty "and perhaps the tibial component if it is loose." The Veteran was hospitalized from November 15-17, 2006, at a private hospital for left ankle surgery. On admission, the Veteran complained of "increasing pain since total ankle arthroplasty in March 2005. It appears he has some talar subsidence and anterior placement of his total ankle arthroplasty, and he is indicated for revision. He presents to undergo this procedure." This surgery occurred on November 15, 2006, without complications. The operative report indicated that the pre-operative and post-operative diagnoses were painful left total ankle arthroplasty. The surgical procedures were a revision of total ankle arthroplasty, talar component only, and implant removal at the fibular and talus. The surgeon noted in the operative report that the Veteran's left ankle x-rays "look good but he continues to have dull aching pain that has not improved." At discharge, the Veteran's feet were warm, well-perfused, and had intact sensation. The admission and discharge diagnoses were left ankle pain status-post total ankle arthroplasty. The Veteran was advised to follow up in 2 weeks and continue to wear a splint. He also was advised to "remain non-weightbearing on his left lower extremity in the interim." On private outpatient treatment in December 2006, the Veteran had been "doing well without any complaints" since his status-post revision total ankle arthroplasty with hardware removal and revision of the talar component surgery 6 weeks earlier. He had been non-weight-bearing on the left lower extremity using a rolling walker and a Cam boot. Physical examination of the left ankle showed well healed wounds, no signs of infection, and no redness or drainage. Range of motion testing of the left ankle showed dorsiflexion to 10 degrees and plantar flexion to 15 degrees. X-rays showed a total ankle arthroplasty "in gross anatomic alignment. The distal tibia and fibula have been fused." The Veteran was advised to being physical therapy "to progress his activities and weightbearing status." He also was advised to return in 6 weeks. A private physical therapist note dated on January 8, 2007, showed that the Veteran contacted her "to clarify his physical therapy orders to increase weight bearing. He is experiencing increased swelling, and feels that the cam walker boot is too tight/irritating his lateral ankle." The Veteran received "guidelines to continue to gradually increase weight bearing. This means that he should still use a crutch for 50% or roll about for long distances. He can come out of boot if it seems to irritate his ankle, as long as he is wearing a sturdy, supportive shoe." On outpatient treatment on February 6, 2007, the Veteran and "no specific concerns or complaints except for some tenderness about his medial malleolus. He believes this may be secondary to shoe wear." The Veteran's surgeries were noted. He also was "an avid motor cross enthusiast." Objective examination showed intact sensation. Range of motion testing of the left ankle showed dorsiflexion to 5 degrees and plantar flexion to 25 degrees. X-rays of the left ankle showed "intact hardware and no signs of fractures or lucency. There is a broken syndesmotic screw in his tibia." The assessment was that the Veteran was "[d]oing well status post left total ankle arthroplasty." The Veteran was advised that he could "graduate from his Cam Walker and he can begin ambulating as tolerated." He also was advised to return in 6 months. In a February 2007 statement, the Veteran asserted, " I have had a second surgery on my ankle. The artificial joint the doctors put in the first time did not heal properly plus a couple of screws had to be removed along with some other hardware." This surgery occurred on November 15, 2006. On VA examination in March 2007, the Veteran's complaints included left ankle weakness, stiffness, swelling, heat, redness, giving way, lack of endurance on prolonged walking, fatigability, and pain. His pain was constant and travelled to the toes. The Veteran described his pain as crushing, burning, sharp, and cramping. He rated his pain as 8/10 on a pain scale (with 10/10 being the worst imaginable pain). His pain was elicited by physical activity and relieved by rest. His left ankle condition was not incapacitating. The Veteran reported having surgery on March 11, 2005, and on November 15, 2006. "He has a prosthetic implant of the left ankle joint which he has had since 2005. There is painful motion of the implanted joint and weakness of the implanted joint." He was unable to do prolonged walking for exercise, had a limp, and could not do any household chores. Physical examination showed posture within normal limits, an abnormal gait with limping in the left leg, and no assistive devices were required for ambulation. Physical examination of the left ankle showed signs of tenderness and a bony prominence but no deformity. Range of motion testing of the left ankle showed dorsiflexion to 20 degrees and plantar flexion to 20 degrees with no DeLuca factors present. X-rays of the left ankle showed status-post total left ankle prosthesis. The VA examiner stated that the Veteran's left ankle condition had a "significant" effect on his daily activities. The diagnosis was status-post left total ankle replacement with pain and scar residuals. On private outpatient treatment later in March 2007, the Veteran's complaints included continued pain on the anterior medial aspect of the left ankle. "In fact, recently he had a shooting pain while climbing a ladder and fell from the ladder, landing on his left hip. He reports that he has been doing well since then; however, he has continued to have anterior medial ankle pain with ambulation." There had been no increase in left ankle swelling. Objective examination showed a well healed left lower extremity "with no evidence of infection," minimal left ankle swelling over the anterior and medial portion of the ankle, no tenderness to palpation in the left ankle, and intact sensation. "He has good dorsiflexion, plantar flexion, inversion, eversion, and toe flexion and extension." X-rays showed no changes in the surgical hardware or the alignment of the total ankle arthroplasty and no evidence of loosening or complications. The assessment was that the Veteran was "4 months out from a revision total ankle arthroplasty who is having anterior medial ankle pain. It is unclear where exactly his ankle pain is coming from. It seems from the swelling that he may be having some scar tissue and inflammation formation." The Veteran's ankle was injected with Marcaine and methylprednisolone. "Hopefully, this will give him some alleviation of his pain as well as decreasing the amount of scar tissue." The Veteran was advised to "continue to mobilize as tolerated" and to return in 2 months' time for repeat x-rays. Private x-rays taken in May 2007 showed a total ankle arthroplasty "without interval change in bone alignment or hardware position. No complication is evident." X-rays taken in April 2008 showed a total ankle arthroplasty present "without interval change in bone alignment or hardware position," an interval fracture of a syndesmotic screw remnant was seen "just cranial to the distal tibiofibular synostosis," osteophytes within the distal tibia and fibula, and soft tissue swelling. On private outpatient treatment in April 2008, the Veteran's complaints included "some nightly ankle swelling and low-grade pain in his ankle." He had fallen on his leg recently "but that has since healed, he feels." The Veteran's prior surgeries in 2005 and 2006 were noted. He was "approximately 18 months status post his revision." Physical examination of the left ankle showed general mild swelling around the joint, "excellent sensation and motor function of his foot to all five nerves," less than 2-second capillary refill, and pain on palpation of the anterior ankle joint line and medial malleolus. Range of motion testing of the left ankle showed 5 degrees of dorsiflexion and 25 degrees of plantar flexion. X-rays showed "ballooning osteolysis with evidence lateral of a flexed tibial component...indicating movement." The assessment included "a somewhat loose tibial component with osteolysis and wear of the polyethylene. The [Veteran's] pain is bad, but not extremely bad, he says." The Veteran was advised to undergo a revision arthroplasty and to return in several months. On VA examination in May 2008, the Veteran's complaints included left ankle weakness "which easily rolls to the outside with walking, pain with any weight bearing, stiffness, daily swelling, and giving way. He recently had to stop riding his dirt bike (rode the 500 mile Baja ride a few years ago). He states yard work is now difficult." He described his pain as burning, sharp, cramping, and rated it as 10/10 on a pain scale. "The pain can be elicited by physical activity. It is relieved by rest. At the time of pain he can function with medication." He used an ankle splint and took Tylenol with Codeine and Aleve. The Veteran's prosthetic implant of the left talus was noted and had lasted for 2 years although it "has painful motion and weakness." The Veteran had pain with any weight bearing and an unstable left ankle. Physical examination showed posture within normal limits, an abnormal gait which favored the left foot while walking, and he used an ankle splint for ambulation "because of ankle instability. Physical examination of the left ankle showed weakness, tenderness, a generally enlarged ankle with "landmarks...somewhat obscured," no edema, effusion, redness, heat, and guarding of movement, no subluxation, no deformity, and no malunion of the os calcis or astralgus. Range of motion testing of the left ankle showed 10 degrees of dorsiflexion with pain beginning at 10 degrees and 30 degrees of plantar flexion with pain beginning at 30 degrees with additional limitation of motion of zero degrees due to pain and weakness but no fatigue, lack of endurance, and incoordination. The VA examiner stated that the Veteran experienced deformity of the left ankle, limited range of motion, tenderness, weakness, and pain with weight bearing as residuals of his status-post left ankle sprain. This examiner also stated that the Veteran "is very limited in weight bearing activities. He recently had to give up riding dirt bikes as a hobby/avocation." The Veteran also was limited in walking or standing "for over 15 minutes without resting." The diagnosis was status-post left ankle surgery with scars and weakness. On private outpatient treatment on September 9, 2008, the Veteran complained of "start-up pain which has worsened over the past year. He rates it as 10/10 in the mornings, improving as the day goes by to 7-8/10." He denied experiencing any left ankle pain at night. His pain "is predominantly activity related and aggravated." The Veteran's surgical history was noted. Objective examination showed symmetrical lower limb alignment which was within normal limits, some marked swelling of the left ankle joint circumferentially, bony tenderness on deep palpation "over the affected osteolytic areas," some reduced dorsal sensation due to his total ankle replacement surgeries, and a reduced range of motion "albeit pain-free" in the subtalar joint on inversion and eversion. X-rays showed status-post non-cemented total ankle arthroplasty with arthrodesis of the distal tibiofibular syndesmosis, multiple geographic lytic lesions with well-defined sclerotic boundaries at the prosthesis bone interface sub-adjacent to the tibial resurfacing component "that have enlarged over the past year." The radiologist's differential diagnoses included foreign body histiocytosis or infection. In a letter dated on September 11, 2008, and date-stamped as received by the RO on September 15, 2008, the Veteran asserted, " I will have surgery on my ankle again on 9-24-09 [because] my white blood cells are eating [a]way at my ankle bone and they are going to take out the implant at that time and freeze my ankle." The Veteran was hospitalized from September 24-26, 2008, at a private hospital for surgery to remove his left total ankle arthroplasty and to fuse his left ankle with anterior iliac crest bone graft. A history of an ankle replacement in 2005 with revision in 2006 "and marked osteolysis and continued pain subsequent to that" was noted. The surgical report showed that there were no complications. The pre-operative and post-operative diagnoses on the surgical report were left ankle arthroplasty with extensive poly-wear and lysis of surrounding bone. The admission and discharge diagnoses were failure of total ankle arthroplasty with significant osteolysis and increasing pain. On private outpatient treatment in October 2008, it was noted that the Veteran was "two weeks status post removal of implant and ankle arthrodesis with bone graft." Physical examination showed that the Veteran's left ankle "looks pretty good today." His sutures were removed surgically. The Veteran was advised to remain non-weight-bearing and to return in 1 month for x-rays "and [to] assess whether a second round of bone grafting may be appropriate." Private x-rays taken on November 4, 2008, showed interval removal of total ankle arthroplasty and fusion of the tibiotalar joint with multiple screws and a single plate. There were no acute complications. In an "Activity Restriction/Return To Work Form," dated that same day, it was noted that the Veteran had been seen for "follow-up ankle arthrodesis." He was advised that he may not return to work/school "from 11/15/06 to present." X-rays taken that same day showed "less lytic change than was visible preoperatively." B.J.S., M.D., stated: I am going to start [the Veteran] with a little bit of weight bearing just to stimulate healing. I do not believe this is healed enough at this point to consider foregone conclusion. At this point, it does not appear to have gaps that require bone grafting, so we are just going to re-x-ray him in about six weeks' time. On private outpatient treatment in December 2008, the Veteran complained of continued left ankle discomfort "when dependent." He was status-post excision of Agility ankle and bone grafting from the iliac crest, combined with cancellous allograft. X-rays showed "some areas that appear to be bridging and other areas that are not." The Veteran was advised to undergo a computerized tomography (CT) scan "to see if we can determine whether we need to graft him again." A CT scan taken later that same month showed instrumented arthrodesis of the tibiotalar joint with the anterior plate and multiple screws. "Ankylosis has not yet occurred. A single screw tip projects into the sinus tarsi." In January 2009, the Veteran complained of continued left ankle pain with activity. "He is currently about 50% weightbearing." He rated his pain as 5-7/10 on a pain scale. The Veteran's prior left ankle surgeries were noted. He was 4 months out from his most recent tibiotalar fusion in September 2008. Objective examination of the extremities showed a well-healed anterior incision, some residual swelling, good subtalar motion, intact sensation, and toes were warm and well perfused. X-rays showed intact hardware "without evidence of loosening or failure." The Veteran's December 2008 CT scan was reviewed "and demonstrates multiple areas that are not healed." The assessment was a history of total ankle arthroplasty removal and tibiotalar fusion "now likely with a nonunion due to persistent pain as well as lack of clear bridging on CT scan." The Veteran was advised "to remain 50% weightbearing" and to get x-rays in 6 weeks. In March 2009, the Veteran reported that all of his pain had resolved and he walked "without any aid." Physical examination showed no signs of infection or redness, decreased swelling, and "a very stiff subtalar joint and no appreciable ankle motion but he has intact sensation to the dorsal plantar foot." X-rays showed "maybe a little bit of increased bony bridging" of the left ankle "but again there is some suspicion for at least partial areas of nonunion." The private physician concluded: [The Veteran] is not having any symptoms. He is walking without a limp. I would recommend him just continue this. He is going to follow up in three months and if at that point he is feeling fantastic still I told him he can cancel his appointment but I want him to call and give us an update. On private outpatient treatment on June 2, 2009, the Veteran's complaints included increased swelling and pain in the left ankle. "He is only able to be up on it for about four hours before the pain becomes significant. Interestingly, he actually is comfortable when he is wearing his rigid boots that he uses for dirt bike riding." The Veteran's surgical history was noted. His left ankle pain "is located primarily along the medial aspect of the joint line." Physical examination of the left ankle showed notable edema, no tenderness to palpation, and very limited subtalar motion. X-rays showed the left ankle hardware "is in place and stable but there is some halloing [sic] around a couple of the screws. It does not appear that there has been an adequate fusion of the tibiotalar joint." The assessment was failed tibiotalar fusion following removal of ankle arthroplasty. The Veteran was advised that he would need a "re-grafting of the fusion site to help secure a good fusion." He also was advised to proceed with surgery "at his convenience." On June 9, 2009, it was noted that the Veteran "is dealing with a left ankle replacement that did not do well and had to be removed and fused." It also was noted that "the fusion is now not taking and he is scheduled on July 1 for more bone grafting. He is not sure how he is going to manage that." The Veteran was retired. "He lives on the golf course and is hoping to get back to dirt biking and a high level of activity." Physical examination showed he was using crutches and had "a bad limp with pain in the left ankle." The assessment included non-union or partial union of the left ankle after failed total ankle replacement. On VA examination on June 11, 2009, the Veteran's complaints included severe left ankle pain "with any weight baring, and significant pain even when he places his foot on the floor when seated. He is in a non-weight-bearing status, using crutches until the next ankle surgery. He cannot bear any weight on the left ankle." The Veteran described his pain as medial and lateral "which occurs any time he bears any weight on that foot," localized to the left ankle, burning and sharp, and 10/10 on a pain scale (or the worst imaginable pain). His pain was relieved by rest. "At the time of pain, he can function only with crutches." He also experienced left ankle weakness, stiffness, swelling, redness, giving way, locking, and fatigability. He denied any left ankle heat, lack of endurance, locking, or dislocation. The Veteran's surgical history was noted and his replacement ankle joint was weak and unable to bear weight. Physical examination showed posture within normal limits and a gait using crutches but no cane, corrective shoes, or walker. Physical examination of the left ankle showed tenderness medially and laterally, no edema, effusion, weakness, redness, heat, minimal motion, no subluxation, and no plantar flexion, inversion, or eversion deformities. Range of motion testing of the left ankle showed dorsiflexion to zero degrees and plantar flexion to 20 degrees without any DeLuca factors present. X-rays showed left ankle fusion with intact hardware. The diagnosis was status-post left ankle replacement surgery with scars and minimal weight bearing which was "a result of a progression of the previous diagnosis." On private outpatient treatment on June 30, 2009, it was noted that the Veteran was "status-post a removal of total ankle arthroplasty and followed by a fusion which has subsequently gone under nonunion. He is now scheduled for revision fusion with possible reamer irrigator-aspirator bone graft harvesting from the left femur." Physical examination showed left ankle swelling, well-healed incisions, "some tenderness here when he is ambulating," and "some prominence of the lateral most screw that bothers him along the fibula." X-rays showed "what appears to be nonunion of the talar joint." The treatment plan was a revision ankle arthrodesis with a bone graft from the femur, re-plating, and fixation with new hardware the following day. The Veteran was hospitalized from July 1-3, 2009, at a private hospital for left ankle fusion using a bone graft. It was noted that, in the previous 2 1/2 years, the Veteran had developed "rapid osteolysis with settling of his implant" following a left ankle arthroplasty. It was noted that: We discussed revision with him and he did not want to try it again, so we went to an ankle fusion. Because of the size of the defect we had planned to stage it. Graft it once and then come back in six weeks and then graft it again. However, he was doing so well at six weeks we elected to delay that. And, he did well up until a few weeks ago when he began to have pain and x-rays were done June 2nd and we got him scheduled for bone grafting today. The Veteran tolerated the surgery "very well" without complications. The admission and discharge diagnoses were painful ankle status-post removal of ankle arthroplasty and internal fixation. He was discharged home non-weight-bearing on the left lower extremity. The treatment plan to have x-rays done in 6 weeks "and keep him non-weightbearing until that time." On private outpatient treatment on July 14, 2009, it was noted that the Veteran "is now two weeks out from re-do bone graft from reamer irrigator aspirator and left femur to the left ankle. Wounds look fine." His sutures were removed. He was advised to "continue his touchdown on the weightbearing status." He also was advised to return in 1 month for x-rays. In a form letter signed by Dr. B.J.S. and dated on July 15, 2009, it was noted that the Veteran's return to work/school was "indefinite." In a statement attached to this form letter, the Veteran contended that he had had 4 surgeries on his left ankle in the previous 4 years. He also contended that Dr. B.J.S. had advised him "to keep weight off the ankle." On private outpatient treatment in August 2009, the Veteran denied having any pain. He liked to play golf and ride dirt bikes. He rated his pain as 0/10 on a pain scale (no pain). Objective examination showed "a surprisingly mobile subtalar joint." The assessment was that the Veteran "is progressing well, status post recent revision left ankle fusion." In September 2009, the Veteran reported that "he is doing well. He has been 100% weightbearing in his controlled ankle motion (CAM) boot with 1 crutch for the last several weeks. He has no new complaints in regards to the left lower extremity." It was noted that this was the Veteran's third post-operative visit after recent left revision ankle fusion surgery. Physical examination of the left lower extremity showed well-healed incisions, no tenderness to palpation, compensatory forefoot motion, well-preserved subtalar motion, and a capillary refill of less than 2 seconds. X-rays showed "excellent incorporation and bony bridging of the tibiotalar fusion. The hardware remains in stable position." The diagnosis was left tibiotalar revision fusion. The Veteran was advised to return "to activities as tolerated" and to begin physical therapy. "He can progress to weightbearing as tolerated in a regular shoe." He also was advised to return in 3 months. In December 2009, it was noted that the Veteran was "doing well" and was status-post ankle fusion revision with plate. "He is full weight-bearing within limit[s]. He can walk about 90 minutes to two hours before he has to sit and rest; this on the left side." He also had some activity restrictions. Dr. B.J.S. stated: Briefly, [the Veteran] has a fused ankle. He is about a centimeter to 1.5 cm short on that [left] side. He has subtalar arthrosis that at this point is mild, but we really want to protect that subtalar joint. At some point in the future, he is going to need to have the plate removed because the limitations on where we could put that have it extending a little bit over the navicular and would be irritating him there. The Veteran was advised to return in 3-6 months. In an "Activity Restriction/Return to Work" form dated on December 22, 2009, it was noted that the Veteran's left ankle "may take full weight; no more than 2 hours at [a] time." On private outpatient treatment in April 2010, no complaints were noted. It was noted that the Veteran had been seen in December 2009 "with minimal issues." Physical examination of the left ankle showed a well-healed surgical incision, good range of motion, crepitus with ankle dorsiflexion, and "significant subtalar crepitus without pain." The Veteran was "ambulating well." The impression was well-healed left ankle fusion. An Operative Note dated on August 25, 2010, shows that the Veteran had left ankle surgery at a private hospital to remove "an anterior plate, the distal tip of which is abutting on his midfoot bones, and has some prominent hardware that bothers him under the skin." There were no complications. An Operative Note dated on September 29, 2010, shows that the Veteran returned for surgery to close a 2.5 cm x 1 cm area "open on the front of the ankle that has not closed. It is clear and looks like it would be amenable to secondary closure." There were no complications during this surgery. The pre-operative and post-operative diagnoses were wound dehiscence of the left ankle. On VA examination in March 2011, the Veteran's complaints included left ankle weakness, stiffness, swelling, heat, giving way, lack of endurance, tenderness, pain, and dislocation. He experienced flare-ups of pain "as often as 7 time(s) per week and each time lasts for 1 day(s)." He rated his pain as 5/10 during flare-ups which were precipitated by physical activity and alleviated by rest. He was unable do any prolonged standing or walking during flare-ups of left ankle pain. Physical examination showed a normal posture and an antalgic gait "due to left ankle fusion surgery. Physical examination of the left ankle showed no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement, favorable ankylosis, no instability, and no pain. Range of motion testing could not be performed because the left ankle joint was ankylosed. X-rays showed post-trauma to the left ankle with multiple internal fixation screws in the distal tibia, fibula, and talus, ankylosis of the talotibial joint, and no acute abnormality. The diagnoses included status-post left ankle fusion surgery with residuals of left ankle joint ankylosis. Analysis The Board finds that the Veteran is not entitled to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011. The Veteran essentially contends that his service-connected left ankle disability has been totally disabling since he was awarded service connection for this disability, entitling him to a temporary total rating since that date. To the extent that the Veteran is arguing that his temporary total disability rating should be made permanent beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011, the Board concludes that this argument misunderstands the purpose of a temporary total disability rating. A temporary total disability rating is designed to compensate a Veteran where treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30 (2012). When this period of convalescence ends, another rating is assigned reflecting the level of post-convalescent disability experienced by a Veteran. By its very nature, and contrary to the Veteran's argument in this appeal, a temporary total disability rating is not intended to be a permanent rating. Accordingly, the Board finds that the Veteran's argument concerning his alleged entitlement to a permanent extension of his temporary total disability rating is without merit. More importantly, the Board finds that the record evidence does not support the Veteran's assertions regarding his entitlement to additional periods of temporary total disability based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods for which a temporary total disability rating currently is in effect. The Veteran had a left ankle arthroplasty on March 9, 2005. As noted above, under 38 C.F.R. § 4.71a, DC 5056, a temporary total (100 percent) disability rating may be assigned for 1 year following implantation of prosthesis in the ankle joint. See 38 C.F.R. § 4.71a, DC 5056 (2012). Accordingly, the Veteran was entitled to a temporary total disability rating for 1 year following this surgery, or until April 30, 2006 (the end of the calendar month after the month in which his first left ankle surgery occurred 1 year earlier). The Veteran next had surgical revision of the talar component of the prior left ankle arthroplasty on November 15, 2006. On outpatient treatment on February 6, 2007, the Veteran was advised to discontinue use of a cam walker boot and to ambulate as tolerated on his surgically repaired prosthetic left ankle. This is considered to be the end of his convalescence following surgical revision of the talar component of the prior left ankle arthroplasty on November 15, 2006. Accordingly, the Veteran was entitled to a temporary total rating from November 15, 2006, to February 28, 2007 (the end of the calendar month in which his second surgical convalescence had ended). See 38 C.F.R. § 4.30 (2012). The Veteran next had surgery to remove his left ankle arthroplasty and to fuse his left ankle on September 24, 2008. On November 4, 2008, the Veteran was advised that he could return to work or school. This is considered to be the end of his convalescence following surgical removal of the left ankle arthroplasty and fusion of the left ankle on September 24, 2008. Accordingly, the Veteran was entitled to a third temporary total rating from September 24, 2008, through November 30, 2008 (the end of the calendar month in which his third surgical convalescence had ended). Id. The Veteran's prosthetic left ankle was removed surgically on July 1, 2009, entitling him to a temporary total rating for 1 year following the surgical removal of his prosthetic left ankle. See 38 C.F.R. § 4.71a, DC 5056 (2012). The Veteran's surgeon, Dr. B.J.S., noted that the Veteran had an "indefinite" date when he might return to work or full activities in a form letter dated on July 15, 2009, approximately 2 weeks after the surgical removal of the Veteran's prosthetic left ankle. The Board notes that the record evidence persuasively suggests that the Veteran's convalescent period following his July 2009 surgery ended either in August 2009, when he reported no left ankle pain and was noted to be "progressing well," or in September 2009, when he was bearing full weight on his left ankle. Because the Veteran's surgeon, Dr. B.J.S., concluded that his return to work or activities was "indefinite" in July 2009, it appears that his temporary total rating was continued beyond the 1 year timeframe following surgical removal of his prosthetic left ankle on July 1, 2009. Dr. B.J.S. stated in December 2009 that the Veteran should anticipate additional left ankle surgery due to the position of a previously implanted surgical plate. The Veteran had this additional left ankle surgery on August 25, 2010, when his left ankle hardware was removed and on September 29, 2010, when his left ankle surgical wound was closed secondary to wound dehiscence. Accordingly, the Veteran was entitled to a temporary total rating from June 30, 2009, to September 30, 2011 (the end of the calendar month in which his most recent surgical convalescence ended). Id. With the exception of the time periods for which a temporary total disability rating already is in effect, the evidence does not show that the Veteran was hospitalized during the appeal period for treatment of a service-connected disability which 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. See 38 C.F.R. § 4.30(a) (2012). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to additional temporary total disability ratings based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability. In summary, the Board finds that the criteria for a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011, have not been met. ORDER Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence associated with a service-connected left ankle disability beyond the time periods from March 9, 2005, to April 30, 2006, from November 15, 2006, to February 28, 2007, from September 24, 2008, to November 30, 2008, and from June 30, 2009, to September 30, 2011, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs