Citation Nr: 1327660 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-20 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a temporary total rating for a period of convalescence beyond July 27, 2008, following right knee anterior cruciate ligament reconstruction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran apparently had active service from April 1983 to March 1994. The Veteran also had a period of reserve component service prior to his entry into active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal is more accurately characterized as set forth on the title page of this decision. The Veteran requested a Videoconference Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in May 2013. The Board notes that, in his November 2008 notice of disagreement to the denial of a temporary total rating beyond July 27, 2008, the Veteran submitted a claim for a clothing allowance. The Board is unable to determine the status of that claim. It may have been referred to a VA Medical Center for review. However, an electronic entry in October 2012 suggests that the issue was "advanced," so it is not clear to the Board that the matter has been resolved, although the claims file includes no additional communication from the Veteran. The matter is REFERRED to the RO for any necessary action, if the matter has not been resolved by the RO or by a VA Medical Center. FINDING OF FACT Following right knee anterior cruciate ligament (ACL) reconstruction surgery on June 27, 2008, the Veteran's right knee was completely immobilized until early September 2008, and the Veteran continued to require crutches for ambulation until October 1, 2008, when his surgeon released him to return to work. CONCLUSION OF LAW The criteria have been met for an extension to October 1, 2008, for a temporary total rating awarded under the provisions of 38 C.F.R. § 4.30 following surgical treatment of a service-connected right knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to an extension of benefits to October 1, 2008, for convalescence following surgical treatment of a service-connected right knee disability. The Board agrees with the Veteran. Because the decision below grants the entire benefit the Veteran is seeking, the Board is not required to discuss its duties to notify and assist the Veteran of the evidence necessary to substantiate the claim or the hearing officer's duty to assist the Veteran to understand what additional evidence might substantiate the claim. Historically, the Veteran underwent surgical treatment of the right knee in service. He sought service connection for a right knee disability soon after his 1994 service discharge, and that claim was granted. In March 2008, the Veteran submitted a claim for an increased rating for right knee disability. Private treatment records of SH, MD, dated in April 2008 reflect that the Veteran agreed to undergo surgical treatment of the right ACL. The surgery was performed by Dr. H. on June 27, 2008. The Veteran's knee was held in an immobile position by an immobilizer, and the Veteran ambulated with two crutches. In July 2008, the private treatment notes of Dr. H. reflect that the Veteran was released to "light duty" but he continued to require crutches for ambulation, and there was no range of motion of the right knee. August 2008 treatment notes reflect that the Veteran was not tested for range of motion. In September 2008, the Veteran was found to have range of motion of zero degrees of extension to 135 degrees of flexion. Compare page 1, August 2008 private treatment note, SH, MD to page 1, September 2008 private treatment note, SH, MD. In a statement dated in September 2008, Dr. H. stated that the Veteran was still disabled and unable to work. Dr. H. estimated that the Veteran would be able to return to work October 27, 2008, and noted that the Veteran's next appointment to see Dr. H. was scheduled on October 1, 2008. At the October 1, 2008 appointment, Dr. H. advised the Veteran that he could return to work. Dr. H's records do not specifically state instructions regarding use of a knee immobilizer, weightbearing, or use of crutches for ambulation. However, the Veteran testified at his May 2013 Videoconference hearing before the Board that he was required to wear a knee immobilizer that reached from above the knee to the ankle, and then a smaller knee brace, and to use two crutches for ambulation, until the October 1, 2008 medical appointment. The Veteran testified that he was released to return to work on October 1, 2008. Applicable law and regulations A total disability rating (100 percent) for convalescence purposes will be assigned effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of 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 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)(1)-(3). Extensions of 1, 2, or 3 months beyond the initial 3 months are permissible under either (a)(1), (2), or (3). 38 C.F.R. § 4.30(b)(2). Furthermore, an extension of 1 or more months up to 6 beyond the initial 6 months are permissible under paragraph (a)(2) and (3). Id. Therefore, the maximum period of a temporary total disability evaluation due to convalescence permitted by VA regulations is 1 year. In Felden v. West, 11 Vet. App. 427, 430 (1998), the United States Court of Veterans Appeals (Court), citing Dorland's Illustrated Medical Dictionary 374 (28th ed. 1994), defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id., citing Webster's Medical Desk Dictionary 606 (1986). In other words, the purpose of a temporary total evaluation pursuant to section 4.30 is to aid the Veteran during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. Notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of section 4.30. See Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). In determining whether a Veteran is entitled to a temporary total evaluation due to convalescence, the most probative medical evidence is that prepared at or near the time of the treatment requiring convalescence. See Felden, 11 Vet. App. at 430 (noting that a report rendered near the time of a hospital discharge or an outpatient release, or a later medical opinion issued close to the time of discharge or release, could be used to determine entitlement). Analysis It is undisputed that the Veteran underwent ACL surgery for service-connected right knee disability on June 27, 2008. The medical evidence establishes that he was medically cleared by the orthopedic surgeon to return to work on October 1, 2008, slightly more than three months after the day of the surgical procedure. The evidence establishes that the Veteran was medically advised not to return to his employment as a Vons fuel stations manager until medical cleared. The Veteran has requested that the initial award of temporary total benefits, granted to July 28, 2008, be extended beyond that date to October 1, 2008. The evidence establishes that the Veteran's right knee remained immobilized, and he was not allowed to demonstrate range of motion in medical evaluations, until early September 2008. See July 2008, August 2008, and September 2008 private treatment notes, SH, MD. The Veteran was ambulatory only with the use of two crutches. The notes do not reflect establish when the Veteran was medically permitted to bear weight on the right lower extremity. However, the Veteran has testified that he continued to require use of two crutches for ambulation until October 1, 2008, when his surgeon advised him he could return to work. The Board found this testimony to be credible. In short, the evidence establishes that the Veteran was medically unable to return to his employment from the time of his June 2008 surgical treatment of his right knee until October 1, 2008, because he required convalescence from the surgical procedure. There is also sufficient evidence establishing that the Veteran met at least one criterion for convalescence, the need to use crutches for ambulation, until October 1, 2008. The Veteran thereby meets one or more of the criteria for a temporary total rating under 38 C.F.R. § 4.30 from the date of the June 2008 surgery through October 1, 2008. Reference is made to the Veteran's testimony that the Veteran testified that he did not actually report to work until Friday, October 3, 2008. The Board does not interpret the Veteran's testimony regarding his actual date of return to work as a claim that he is entitled to benefits for convalescence after October 1, 2008, when he was medically cleared to return to work. The Veteran's representative noted the Veteran's contention that he was entitled to three months of convalesce compensation. Tr. 2. The Veteran specified in his November 2008 disagreement with the length of the award of temporary total disability benefits that the provider "cleared me to work on 10/1/08." The Veteran's representative provided a cover letter stating that "The date for the end of [the Veteran's temporary increase due to convalescence should have been 10/1/08, as prescribed by his doctor." ORDER Extension of a temporary total rating under 38 C.F.R. § 4.30 beyond July 28, 2008, is granted to October 1, 2008. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs