Citation Nr: 1336653	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  10-33 872	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an extension of a temporary total disability evaluation for convalescence following surgery beyond February 1, 2009.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1981 to October 1983.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for entitlement to an extension of a temporary total disability evaluation beyond February 1, 2009.  A February 2010 rating decision confirmed and continued this denial.

The Board notes that the Veteran also initiated an appeal as to a claim for increase for his service-connected ventral (umbilical) hernia.  A statement of the case was issued in April 2012, and the Veteran has not filed a substantive appeal.  Thus, this issue is not in appellate status and will not be addressed any further herein.  See 38 U.S.C.A. § 7015(a).


FINDING OF FACT

After February 1, 2009, the Veteran did not have severe postoperative residuals of surgical hernia repair 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) that required further convalescence.


CONCLUSION OF LAW

Entitlement to an extension of a temporary total disability evaluation beyond February 1, 2009 is not warranted.  38 C.F.R. § 4.30 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA applies to the instant claim.

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  A May 2009 letter explained the evidence necessary to substantiate a claim for increase, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate.

The Veteran has not been informed, via RO correspondence, of the specific criteria for an extension of his temporary total rating since he filed his claim for extension in March 2009.  Not all notice errors require corrective action.  Rather, the question is whether 38 C.F.R. § 19.9 requires that the matter be remanded for correction of the error is because such action is essential for a proper appellate decision.  This the Board views in light of the rule of prejudicial error, which provides that if the error is not prejudicial to the claimant, it is harmless error and therefore requires no correction.  See generally, Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of claims for VA benefits).

Here, the Veteran was provided with a specific notice letter regarding the evidence and legal requirements necessary for a convalescent rating in December 2008, in connection with his initial claim for a convalescent rating.  In addition, he was provided with a statement of the case in February 2010 that included the regulatory text (38 C.F.R. § 4.30) explaining to him what is required for a grant of an extension of his temporary total rating.  Further, the Veteran's written statements demonstrate a basic knowledge of what was needed to grant his claim.  Based on the foregoing, together with the opportunity that the Veteran has had to meaningfully participate in the processing of this matter, that is, to offer argument and to submit evidence or request that VA obtain evidence, the Board finds that there has been no prejudice to the Veteran resulting from the defects in VCAA notice and that a remand is not necessary to inform the Veteran of that which a person would already understand given the facts of this case.

As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini.  However, as the case was readjudicated thereafter; there is no prejudice to the Veteran in this regard.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  In August 2009 RO correspondence the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran's pertinent treatment records have been secured.  The RO arranged for VA examinations in April and December 2009.  The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  


Legal Criteria, Factual Background, and Analysis

The Veteran contends that he is entitled to an extension of a temporary total rating for convalescent purposes.  He essentially argues that after a surgical hernia repair, he required convalescence beyond February 1, 2009 (until May 2009), which was the date assigned by the RO.  See July 2009 Veteran statement.

The provisions of 38 C.F.R. § 4.30 pertaining to temporary total evaluations provide as follows: A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, 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 such hospital discharge or outpatient release.

Total ratings will be assigned under 38 C.F.R. § 4.30 if 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 a wheelchair or crutches (regular weight-bearing prohibited).
(3) Immobilization by cast, without surgery, of one major joint or more.

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 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).

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).

The medical evidence of record shows that the Veteran had surgery on November 20, 2008.  Upon discharge, the Veteran was instructed not to lift greater than 10-15 pounds for the following 6-8 weeks.  Therefore, the doctor's opinion was that the appellant would not return to an improved state of health for 6-8 weeks.  The connection between the appellant's lifting restrictions and the operation was apparent from the discharge documents.

On November 28, 2008, the Veteran was seen post-surgery complaining of severe groin and abdominal pain unchanged since surgery.  It was noted that the Veteran continued to want to discuss inguinal hernias.  Following an examination, the Veteran was informed that the original mesh placed laparoscopically had not been disturbed and that his umbilical hernia had been very small and easily closed with suture only and that no additional mesh was placed.  He was also informed that there was no evidence of inguinal hernias and that he does not require inguinal hernia repair.  He was again advised to continue lifting restrictions of no more than 10-15 pounds.

The question in this case, then, is whether, due to his November 2008 hernia surgery, the Veteran required additional time to return to his normal state after February 1, 2009.  The Board finds that the preponderance of the evidence is against a finding that the Veteran required additional convalescence due to the November 2008 hernia surgery.

While the record after February 1, 2009 is clear that the Veteran continued to have medical problems, including those that impacted his employment, the evidence does not show that he required continued recovery as a result of the November 2008 surgery.  Instead, the evidence indicates that he sought continued treatment due to the development of new hernias and due to chronic medical issues (which preexisted the surgery), including chronic abdominal pain and testicular pain.  

Further, the evidence shows that the limits on the Veteran's employability after February 1, 2009, were due to chronic physical and mental health issues, including chronic abdominal pain and testicular pain and psychiatric issues.  After February 1, 2009, there is no evidence which shows an apparent connection between the Veteran's unemployability and the November 2008 operation specifically. 

A February 9, 2009 note reflected that the Veteran was able to lift 10 to 15 pounds but that he would need to be placed on light duty permanently due to his "recurrent hernia repairs, chronic abdominal pain, testicular pain."  The physician also noted that the Veteran "has other psychiatric issues that affect his ability to maintain employment."  Nothing in this note attributes the Veteran's state of health to transient incapacitation associated with recuperation from the immediate effects of an operation.  Instead, it is clear the limitations on employment are due to chronic issues preexisting the November 2008 surgery.  

On March 31, 2009, the Veteran reported that he had a new hernia after lifting a sack of 10 pounds of potatoes and a gallon of milk.  Again, these complaints are due to a post-surgical incident and are not due to recuperation from the November 2008 surgery.

On April 2009 VA examination, the Veteran reported continuing to have pain following a repair in November 2008.  He reported umbilical pain and stated the pain radiates from his umbilicus into his left groin and testicle.  A physical examination revealed a scar just above and below the umbilicus.  The examiner noted that the Veteran reacted strongly to painful stimuli and that just above one of the scars, there was a slightly firm area that is tender.  It was noted that if this is a recurrent hernia, it is not reducible because of the Veteran's response to pain.  The examiner noted no evidence of diastases recti of the recti muscles and no obvious bulging, medially or laterally.  An examination of the inguinal areas for hernia revealed no evidence of direct or indirect inguinal hernias.  While it is clear that the Veteran reports continued pain following the surgery, the pain does not rise to the level of a severe postoperative residual 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).

On June 2009 urology consultation, an examination revealed no hernias, although there was diathesis around the actual supraumbilical scar.  In July 2009, the Veteran was examined by the chief of urology, who noted no significant tenderness of the abdomen, no significant pain, and no hernias present at the time.

In September 2009, the assessment was a hernia.  In October 2009, the Veteran presented complaining of pain in the abdominal area.  An examination revealed normal, active bowel sounds all over his entire abdomen.  His abdomen was soft with no tenderness to palpation or percussion, but with pain in the naval regional.  Another examination this same month revealed well-healed surgical scars.

On December 2009 VA examination, the Veteran complained of pain on the left side of his abdomen.  A physical examination revealed a soft abdomen and a scar inferior to the naval as well as a vertical incision above the naval.  It was noted that this area is "well healed, without keloid."  Further, the naval and scar were nontender to palpation and no ventral or umbilical hernias were noted in the area.  

In February 2010, a statement was submitted from a staff physician indicating that the Veteran has a ventral hernia in his abdomen which causes him chronic pain and which can get aggravated with any weightlifting.  It was noted that he takes chronic pain medications for this condition and that his lifting ability is restricted to no more than 10 pounds.

In March 2010, a VA provider noted that the Veteran "is considered completely unemployable due to his recurrent hernias and mental health issues.  He has required additional convalescence for more than 1 year."  

After a review of the medical evidence in the record, the Board finds that after February 1, 2009, there remained no 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) which would warrant extension of the temporary total rating for convalescence from the November 2008 surgery.  The Veteran's incisions from surgical repair of a hernia healed.  Further, although there are notes in the record about abdominal pain, the Veteran requiring light duty for 12 months or being unable to do any job requiring lifting, these notations address the Veteran's chronic conditions that preexisted the surgery and are not attributable to recuperation from the immediate effects of the November 2008 operation.

With regard to lifting restrictions, the Board notes that following surgery, the Veteran was advised not to lift greater than 10-15 pounds, which was an improvement over the five pound restriction made by his rehabilitation doctor prior to surgery.  This shows that the Veteran was actually doing better post-surgery.

The Board acknowledges the March 2010 notation from a provider indicated the Veteran has required "additional convalescence for a year"; however, the Board notes that the provider made this statement over a year following the surgical procedure in question, and attributed the need for convalescence to both recurrent hernias and mental health issues.  This provider did not indicate that additional convalescence was needed due to effects from the November 2008 surgery, or further, that the Veteran was unable to work solely as due to the effects from surgical repair of a hernia.  In this regard, the Board finds more probative and persuasive the opinion of the medical professional who evaluated the Veteran at discharge and assessed a period of convalescence extending  6-8 weeks following surgery.  See Felden, 11 Vet. App. at 430 (noting the high probative value of a report rendered near the time of a hospital discharge or an outpatient release on questions with respect to convalescence following surgery).

In sum, the preponderance of the evidence is against a finding that any of the criteria of 38 C.F.R. § 4.30 were met after February 1, 2009.  The Board observes that the Veteran has contended he is unable to work due to his hernias; however, inability to maintain employment is not the criteria to be used; rather, the issue is whether the medical evidence supports a conclusion that the Veteran required convalescence due to the surgery in question.  In this case, the preponderance of the medical evidence indicates that while the Veteran continued to complain of pain after February 1, 2009, his surgical incisions healed and he did not require further convalescence.


ORDER

Entitlement to an extension of a temporary total disability evaluation for convalescence following surgery beyond February 1, 2009 is denied.




____________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs