Citation Nr: 1331878 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-07 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an extension of a temporary total convalescence rating from April 1, 2010, to April 29, 2010, under 38 C.F.R. § 4.30, following right wrist surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1996 to April 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which assigned a temporary total disability rating from November 9, 2009 to March 31, 2010, and assigned a 10 percent rating effective from April 1, 2010. The Veteran testified at a Board hearing in September 2011; the hearing transcript is of record and has been reviewed. At the hearing the Veteran submitted additional evidence and waived initial RO review of that evidence. 38 C.F.R. § 20.1304(c) (2013). In August 2011, the Veteran filed a claim of entitlement to an increased rating for his right wrist disability. The Veteran's virtual VA folder shows that the RO adjudicated this claim in March 2012. As no appeal to the March 2012 rating decision has been perfected, the Board does not have jurisdiction over the claim of entitlement to an increased rating. FINDING OF FACT Clinical findings demonstrate that the Veteran required continued convalescence following his November 2009 right wrist surgery from April 1 to 29, 2010. CONCLUSION OF LAW The criteria for an extension of a temporary total rating for the Veteran's status-post operative right wrist surgery based on convalescence from April 1 to 29, 2010, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the disposition of the claim being decided below is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. II. Analysis A temporary total (100 percent) disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Schedule, when it is established that treatment of a service-connected disability results 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 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. Furthermore, extension of temporary convalescent ratings, for up to three months beyond the initial three months also are available for items (1), (2), and (3) above; and approval may be obtained for extensions of one or more months, up to six months beyond the initial six-month period, for items (2) or (3) above. 38 C.F.R. § 4.30(b). Records show that the Veteran underwent a right ulnar shortening and plating, as well as arthroplasty, on November 9, 2009. This was due to a right wrist ulnar impaction syndrome with chronic dorsal dislocation of the triquetrum. Following the procedure, the Veteran's right arm, from his elbow to his wrist, was put in a splint. In December 2009, the RO granted a temporary evaluation of 100 percent effective November 9, 2009, based on surgical or other treatment necessitating convalescence, to March 1, 2010. In January 2010, the representative, on behalf of the Veteran, requested an extension of the temporary 100 percent rating due to surgical or other treatment necessitating convalescence. He included a medical document from the VA Pittsburgh Healthcare System, dated in January 2010 and signed by a physician, stating that the Veteran was to be off work for two to three months. In February 2010, the RO extended a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence to April 1, 2010. In February 2010, the representative, on behalf of the Veteran, requested an extension of the temporary 100 percent rating due to surgical or other treatment necessitating convalescence. He included a medical document from the VA Pittsburgh Healthcare System, dated February 26, 2010, and signed by a physician's assistant, stating that the Veteran was to remain off work for two more months. VA outpatient records in February and March 2010 show that the Veteran participated in occupational therapy. The February 2010 record shows that the Veteran was to continue working on range of motion and was to be given a little more time. X-rays taken in February 2010 showed that the fracture appeared to be healing, but may have moved slightly. A March 2010 VA outpatient record from Plastic Hand Attending shows that the Veteran unfortunately had a nonunion of the ulnar shortening. The physician stated that the Veteran's x-rays had been reviewed at length and that by now it should have been healed, but had not. The physician said at that time he wanted to redo the excision of the triquestrum and actually excise the triquetrum since this had remained uncomfortable for the Veteran. On file is an April 7, 2010, medical document from the VA Pittsburgh Healthcare System, signed by a physician, noting that the Veteran had a nonunion of the ulna shortening and that physical therapy would not resolve the problem. The physician stated that the Veteran required additional surgery, a right wrist revision of ulna shortening with graft and excision of a chronic dislocated triquestral. The examiner stated that the Veteran would be off of work for six months and that surgery was scheduled for April 29, 2010. VA outpatient records dated April 29, 2010, show that the Veteran underwent right wrist revision under supraclavicular block. By rating decision in May 2010, the RO assigned a temporary evaluation of 100 percent under the provisions of 38 C.F.R. § 4.30 based on surgical or other treatment necessitating convalescence effective April 29, 2010, for three months, to August 1, 2010. In October 2010, the RO extended the temporary total rating to October 31, 2010. In May 2011, the RO extended it once more, to January 31, 2011. For purpose of applying 38 C.F.R. § 4.30(a)(1), the U. S. Court of Appeals for Veterans Claims (Court) in Felden v. West, 11 Vet. App. 427, 430 (1998) defined the term "convalescence" as indicating that "a surgical procedure had been performed that would require at least one month for the Veteran to return to a healthy state." There is no express requirement of home confinement to meet the definition of convalescence. Given the March 2010 VA outpatient record from Plastic Hand Attending showing that the Veteran's right wrist procedure on November 29, 2010, had not healed, and that revision surgery was required (that revision took place on April 20, 2010); given the February 26, 2010, medical document from a physician's assistant of the VA Pittsburgh Healthcare System stating that the Veteran was to remain off work for two more months; and given the Veteran's credible testimony, the Board finds that the criteria for an extension of a temporary evaluation from April 1, 2010, to April 29, 2010, under 38 C.F.R. § 4.30 are met. The appeal is allowed. ORDER Entitlement to an extension of a temporary total rating, pursuant to the provisions of 38 C.F.R. § 4.30 based on convalescence following the repair of the Veteran's right wrist on November 9, 2009, from April 1 to 29, 2010 is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs