Citation Nr: 1325412	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  10-09 436	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an extension beyond June 30, 2009, for a temporary total rating for convalescence, following surgery on April 30, 2009, for a service-connected bilateral hammertoe deformity. 

2.  Entitlement to an extension beyond November 30, 2009, for a temporary total rating for convalescence, following surgery on October 16, 2009, for a service-connected bilateral hammertoe deformity.

REPRESENTATION

Veteran represented by:	The American Legion

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 July 1983 to May 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in July 2009 (granting a one month extension beyond May 30, 2009, to June 30, 2009 for temporary total rating for convalescence following the April 2009 surgery, and in October 2009, granting a one month temporary total rating for convalescence following the October 2009 surgery), and in November 2009, denying an extension of the temporary total.  

On claim of extension beyond June 30, 2009, for a temporary total rating for convalescence following surgery on April 30, 2009, the Veteran filed a notice of disagreement in July 2009.  As such, the claim for an extension beyond June 30, 2009, for a temporary total rating for convalescence following surgery on April 30, 2009, remains in appellate status, although no related statement of the case has been issued.  As the evidence of record provides a basis for granting the maximum period of convalescence before the second surgery in October 2009, the Board is proceeding with a decision without a statement of the case, addressing a period of convalescence beyond June 30, 2009, and waives the requirement for the filing of a timely substantive appeal to perfect the appeal.  Percy v. Shinseki, 23 Vet. App. 37 (2009).  

In October 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.  At the hearing, the Board admitted testimony on the claim for increase for the service-connected bilateral hammertoe deformity, which is pending adjudication by the RO.





FINDINGS OF FACT

1.  Following surgery performed on April 30, 2000, there were severe postoperative residuals of the service-connected bilateral hammertoe deformity, prohibiting regular weight-bearing through September 30, 2009.

2.  Following surgery performed on October 16, 2009, there were severe postoperative residuals of the service-connected bilateral hammertoe deformity, prohibiting regular weight-bearing through January 31, 2009.


CONCLUSIONS OF LAW

1.  The criteria for extension to September 30, 2009, for a temporary total rating for convalescence, following surgery on April 30, 2009 for a service-connected bilateral hammertoe deformity, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012).

2.  The criteria for extension to January 31, 2010, for a temporary total rating for convalescence, following surgery on October 16, 2009 for a service-connected bilateral hammertoe deformity, have 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)

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 a claim.

As the Board is granting the claims seeking extensions for two periods of convalescence following surgeries for the service-connected hammertoe deformity, VCAA compliance need not be addressed further.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Extension of Temporary Total Ratings for Convalescence

Facts

By a rating decision in September 1993, the RO granted service connection for a bilateral hammertoe deformity, effective June 1993.

On April 30, 2009, the Veteran underwent a flexor tenotomy and capsulotomy of the second, third, and fourth digits of each foot and an arthroplasty of the fifth digit of each foot.  There were no complications.  Post-operatively, the Veteran had well-healed surgical wounds.  

By a rating decision in May 2009, the RO granted a temporary total rating, a 100 percent rating, for convalescence for the period from April 30, 2009, to May 31, 2009, that is, for one month.

In June 2009, the VA podiatrist, who performed the surgery in April 2009, stated that the Veteran had remained totally disabled from the time of the surgery to the date of treatment in June and that the temporary total rating for convalescence should remain in effect until September 30, 2009.

In July 2009, the Veteran disagreed with the termination date of his temporary total rating for convalescence, requesting that the total rating be extended to September 30, 2009, when, according to the VA podiatrist, his convalescence would be completed.  

By a rating decision dated in July 2009, the RO extended the temporary total rating for convalescence to June 30, 2009, that is, for a total of two months. 



On VA examination in October 2009, the Veteran stated while the surgery in April 2009 helped resolve the appearance of the hammertoe deformity, the surgery had not alleviated bilateral foot pain.  On examination, the Veteran had tenderness to palpation of the second through fifth digits on each foot, as well as painful decreased range of motion.

In October 2009, the Veteran requested a temporary total rating for convalescence be extended from June 2009 through January 2010 as he was scheduled to undergo a second surgery in October 2009 to correct the post-operative residuals stemming from the surgery in April 2009.  In October 2009, the Veteran had reconstructive surgery of the fifth toe of each foot. 

The RO construed the claim as a separate claim for a temporary total for convalescence following surgery in October 2009.  In rating decision in October 2009, the RO granted a temporary total for convalescence from the date of the surgery in October 2009 to November 30, 2009.  In November 2009, the Veteran disagreed with the assigned termination date.  In November 2009, the RO denied extension of the temporary total rating for convalescence.  

In November 2009, the VA podiatrist, who performed the surgeries in April and October 2009, stated that the Veteran was experiencing an unusual amount of post-operative pain and edema in the fifth toe of each foot.  The VA podiatrist stated that the Veteran's shoes should be stretched and prescribed a medication to treat the edema.  The VA podiatrist stated that the Veteran required convalescence through January 30, 2010.  

On January 20, 2010, the VA podiatrist released the Veteran to return to work without restrictions.





In October 2011, the VA podiatrist clarified that from the dates of April 30, 2009, to September 30, 2009, and from October 16, 2009, to January 30, 2010, the Veteran was ambulating with the use of crutches and a walker and was instructed to only engage in minimal weight-bearing.  

In October 2011, the Veteran testified that the VA podiatrist had given him instructions for minimal weight-bearing, while he convalesced. 

Analysis

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).


Temporary ratings for convalescence following the Veteran's two surgeries are currently in effect from April 30, 2009, to June 30, 2009, and from October 16, 2009, to November 30, 2009, respectively.  The VA podiatrist, who performed the surgeries and evaluated the post-operative residuals, stated that the post-operative residuals were sufficiently severe as to prohibit normal weight-bearing until September 30, 2009, and January 30, 2010, respectively.  

The VA podiatrist stated that the Veteran required a total of five months of convalescence after the first surgery in April 2009, that is a four month extension beyond the initial one month on convalescence, and stated that the Veteran required three months of convalescence after his second surgery, that is a two month extension beyond the initial one month of convalescence.  Specifically, the podiatrist stated that during the periods of convalescence, normal weight-bearing was prohibited, and that the Veteran was instructed to ambulate with the use of crutches or a walker.

The Board finds that the VA podiatrist's evaluation and medical opinion, regarding the severity of the post-operative residuals and the need for extending the periods convalescence, because normal weight-bearing was prohibited, is persuasive evidence of favor of the claim.

Accordingly, the Board concludes that the period of convalescence, following surgery for the service-connected bilateral hammertoe deformity in April 2009 should be extended to September 30, 2009, and that the period of convalescence, following surgery for reconstructive surgery of the fifth toe of each foot should be extended to January 30, 2010. 
      
      (The Order follows on the next page).








ORDER

An extension to September 30, 2009, for a temporary total rating for convalescence, following surgery on April 30, 2009, for a service-connected bilateral hammertoe deformity, is granted.

An extension to January 30, 2010, for a temporary total rating for convalescence, following reconstructive surgery on October 16, 2009, for a service-connected bilateral hammertoe deformity, is granted.



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs