Citation Nr: 1325289 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-21 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a temporary total evaluation based on surgical or other treatment necessitating convalescence. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board has reviewed the evidence of record, including the Veteran's virtual VA file. Although there are many records dated subsequent to the May 2010 statement of the case that discuss the Veteran's eye disabilities, they are duplicative of the medical evidence of record prior to the May 2010 statement of the case, and are not pertinent as to whether the Veteran required convalescence immediately following his right eye surgery in February 2009. Consequently, the RO properly certified the Veteran's claim to the Board without issuing a supplemental statement of the case. FINDING OF FACT In February 2009 the Veteran underwent a right eye vitrectomy and membrane peel, which did not result in severe postoperative residuals, the therapeutic immobilization of a major joint, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, and did not require at least one month of convalescence. CONCLUSION OF LAW The criteria for a temporary total evaluation due to treatment for convalescence following right eye surgery are not met. 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In May 2009, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA informed the Veteran what private medical records needed to be submitted. The Veteran submitted the pertinent private medical records. The Veteran has been provided a VA medical examination. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The Veteran has not indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's eyes were examined by a private eye surgeon in January 2009. The examiner reported that the Veteran had an epiretinal membrane in his right eye that caused decreased visual acuity. He noted that because the visual acuity had been lost over just the last few months there was a good chance for improvement with membrane removal. In February 2009, the private eye surgeon performed a vitrectomy with removal of the epiretinal membrane of the Veteran's right eye. The February 2009 operative report reveals no complications. There is no indication that the Veteran required any inpatient stay due to his right eye surgery. The record indicates that the next time he was seen for evaluation of his right eye was six weeks later. In late March 2009, the eye surgeon wrote that the Veteran was doing very well following the right eye surgery. He noted that the Veteran's vision had improved a few lines. He also stated that he thought that with additional time the Veteran was likely to have further improvement, and that the retina could continue to improve for up to eight or nine months. The Veteran asserted on his May 2010 substantive appeal that the March 2009 letter from his eye surgeon proves that he required eight or nine months convalescence. Under 38 C.F.R. § 4.30, total ratings will be assigned if treatment of a service-connected disability results in surgery necessitating at least one month of convalescence, or surgery with severe postoperative residuals such as incompletely healed surgical wounds, therapeutic immobilization of a major joint, the necessity for house confinement or the necessity for continued use of a wheelchair or crutches. Regarding the applicable regulation, the Veteran meets the requirements as far as demonstrating that he underwent surgery for treatment of a service connected disability. Service connection and a 30 percent rating is in effect for nuclear sclerotic cataracts, both eyes, status post cataract extraction with intraocular lens implant associated with Type II diabetes. However, it has not been shown that the remaining requirements under 38 C.F.R. § 4.30 have been met. Since the surgery involved his right eye, it is apparent that there was no therapeutic immobilization of a major joint, or the necessity for continued use of a wheelchair or crutches. Furthermore, the evidence does not demonstrate that the Veteran was confined to his home, or that there were severe postoperative residuals, or that at least one month of convalescence was required. The February 2009 surgical report indicates that the Veteran underwent outpatient surgery under a local anesthetic. The report is negative with regard to a recommended length of convalescence. Also, when examined in March 2009, the eye surgeon commented that the Veteran was doing very well following the recent right eye surgery. In July 2009 a VA examiner stated that the Veteran was status post successful vitrectomy and membrane peel in the right eye because of macular membrane causing decreased vision. Therefore, the evidence does not indicate that there were severe post-operative residuals. The Board does not find the eye surgeon's March 2009 statement that the Veteran's right eye vision would likely improve, and could improve for up to eight or nine months to be evidence that the Veteran needed convalescence. In this case the Veteran's right eye vision was improved following surgery and was likely to continue to improve. From the evidence it is reasonable to conclude that the Veteran was not confined to his home, nor did he require convalescence of at least one month. The evidence does not demonstrate that a temporary total rating based on convalescence is warranted. Here, the preponderance of the evidence is against the Veteran's claim for a temporary total rating based on convalescence for right eye surgery. Therefore, the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 2002) is inappropriate in this case. ORDER Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 for convalescence following right eye surgery has not been established, and the appeal is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs