Citation Nr: 1323409	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  09-49 585	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an extension beyond June 30, 2009, for a temporary total rating for convalescence, following surgery for service-connected pes planus.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 



INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1979 to September 1992.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In March 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

In January 2011, the Board remanded the claim for further development, which has been completed.


FINDING OF FACT

Severe postoperative residuals beyond June 30, 2009, such as incompletely healed surgical wounds, 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 regular weight-bearing prohibited, have not been demonstrated.


CONCLUSION OF LAW

The criteria for extension beyond June 30, 2009, for a temporary total rating for convalescence, following surgery for service-connected pes planus, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012).



The Veterans Claims Assistance Act of 2000 (VCAA)

Duty to Notify

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre-adjudication VCAA notice by letter, dated in May 2009, on the underlying claim of entitlement to a temporary total rating for convalescence.  Where, as here, the total rating has been granted, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.

Once the claim for a total rating for convalescence has been substantiated, the filing of a notice of disagreement with the RO's decision assigning a termination date for that total rating does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an extension of the total rating for convalescence.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).


Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. 

The Veteran was afforded a VA examination in September 2009, and he participated in a Board hearing in March 2010.  Efforts were made to obtain the Veteran's private podiatric treatment records created after June 2009, but the Veteran has neither provided the requested records or completed a release form to allow VA to obtain them on his behalf.  

As the veteran has not identified any other additional evidence pertinent to his claim, not already of record, and as there are no other additional records to obtain, the Board concludes that there has been compliance with the duty-to-assist provisions of the VCAA.


REASONS AND BASES FOR FINDING AND CONCLUSION

Extension of a Temporary Total Rating for Convalescence

Factual Background

By a rating decision in May 1993, the RO granted service connection for bilateral pes planus, effective September 1992.

On March 31, 2009, the Veteran underwent a right Achilles tendon lengthening and a right foot triple arthrodesis.  There were no complications.

Post-operatively, the Veteran had well-healed surgical wounds.  In April 2009, he was assessed as having a non-weight bearing status; in May 2009, he began weight bearing using a cam walker (a boot); and in June 2009, he returned to weight bearing in sneakers, with instructions that he was to return for a follow-up appointment in twelve weeks (in October 2009).




Also in June 2009, the treating podiatrist who performed the Veteran's surgery completed a form indicating that the Veteran would be unable to work until August 18, 2009, at which time he would be able to return to work without restrictions.

By a rating decision dated in August 2009, the RO granted a temporary total rating, a 100 percent rating, for convalescence for the period from March 31, 2009 to June 30, 2009, commencing on the date of surgery on the service-connected right foot and continuing for three months.

On VA examination in September 2009, the Veteran was noted to have an antalgic gait, but no use of ambulatory aids was noted.  Additionally, no severe post-operative residuals, including the presence of unhealed surgical wounds, were noted in the examination report.  

During his March 2010 Board hearing, the Veteran reported that when his total rating for convalescence was terminated in June 2009, he was unable to return to his former career as a nurse's aid because his treating podiatrist had stated he could only perform light duty, whereas his regular job duties required regular heavy lifting.  He states that he was first capable of performing his regular duties in August 2009, at which time his podiatrist stated he could return to work.

Analysis

The Veteran contends that his temporary total rating due to convalescence following right foot surgery should be extended beyond June 30, 2009 to August 17, 2009, because he was unable to return to work until this date, per his podiatrist's recommendation.





A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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); (3) immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30(a).

Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3) and extensions of 1 or more months up to a 6 month period may be made under § 4.30(a)(2) or (3).

The criteria for assigning a temporary total for convalescence are either (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a).

As for criterion (1) surgery necessitating at least one month of convalescence, the Veteran was granted three months of convalescence.  

For an extension beyond these three months of convalescence, the evidence must show that one of the three criteria above continue to exist.   38 C.F.R. § 4.30(b)(1).

As for criterion (1), no further surgery was performed; therefore this criterion is inapplicable.  





As for criterion (2), surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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), no severe post-operative residuals have been shown.  As reflected in his post-operative treatment records, the Veteran's surgical wounds were assessed as well-healed; he had no stumps or amputations; his affected joints were not immobilized; he was not placed in a body cast; there is no indication that the Veteran was not house-bound; no use of an ambulatory aid was noted after May 2009; and he began weight bearing in June 2009 prior to the termination of his total rating.  

As for criterion (3), immobilization by cast without surgery, the Veteran had no such procedure; therefore this criterion does not apply.

The Veteran asserts that his period of convalescence existed until August 2009 because his podiatrist deemed him too disabled to work until that time.  However, the post-operative effect on employability is not contemplated by the regulatory criteria for total ratings based on convalescence.  Rather, the criteria, such as would be potentially applicable to this case, require severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, to provide a basis for extending the total rating for convalescence.  










Absent these findings, there is no evidence to support the extension of convalescence beyond June 30, 2009 under the legal criteria set forth in 38 C.F.R. § 4.30.

ORDER

An extension beyond June 30, 2009, for a temporary total rating for convalescence, following surgery for service-connected pes planus, is denied.



____________________________________________
George E. Guido Jr. 

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs