Citation Nr: 1337458	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  09-48 479	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Roanoke, Virginia


THE ISSUE

Entitlement to a temporary 100 percent rating for a left knee surgery on March 13, 2008, requiring post-surgical convalescence


REPRESENTATION

Appellant (the Veteran) is represented by: The American Legion


ATTORNEY FOR THE BOARD

L. Cramp, Counsel




INTRODUCTION

The Veteran had active service from March 1990 to March 1996.  

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the RO in San Diego, California, on behalf of the RO in Roanoke, Virginia.

The Veteran did not report for a Board hearing that was scheduled to be conducted in Washington, D.C. in October 2013.  To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear and he has since made no request for another hearing.  Accordingly, the Board will proceed to a decision on this appeal as if the hearing request had been withdrawn.  See 38 C.F.R. § 20.704(d) (2013) (failure to appear for a scheduled hearing treated as withdrawal of request).  

In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence.  


FINDING OF FACT

The Veteran underwent an arthroscopic procedure on his left knee on March 13, 2008 which required a period of convalescence of 28 days.  


CONCLUSION OF LAW

The criteria for a temporary 100 percent rating due to convalescence following left knee surgery on March 13, 2008 are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 4.30 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

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. 

The conditions warranting entitlement to a temporary 100 percent rating include treatment of a service-connected disability resulting 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 U.S.C.A. § 4.30.  

It is uncontested that the Veteran underwent an arthroscopic surgical procedure on his service-connected left knee on March 13, 2008.  The claim was denied based on the RO's finding that the procedure did not require a one-month period of convalescence, and that none of the other provisions applied.  

A February 8, 2008 pre-operative note indicates the orthopedic surgeon's estimate that the Veteran would require from 4 to 6 weeks time off work following the procedure.  A review of the operative report indicates that there were no complications resulting from the surgery.  A March 26, 2008 post-operative note indicates the orthopedic surgeon's recommendation that the Veteran would be ready to return to unlimited duty on April 10, 2008.  This equates to 4 weeks or 28 days.  The Veteran asserted in the notice of disagreement that he actually was off work for 6 weeks.  

Thus, the essential question to be resolved in this case is whether the Veteran's March 2008 surgery on his service-connected left knee necessitated at least one month of convalescence.  The Board notes that the Veteran is competent to report the length of time he was off work; however, he has elsewhere endorsed the 4-week period recommended by his surgeon.  

The Board notes that "month" is not defined in 38 C.F.R. § 4.30.  The Board observes that the length of a month can range from 28 days to 31 days.  It can also be argued that 4 weeks is the functional equivalent of a month and is often used interchangeably with the term month.  Here, the Board is persuaded that there is no significant distinction between the surgeon's description of 4 weeks and the term "month" used in the regulation.  The evidence in favor of the claim has attained relative equipoise with the evidence against the claim.  With resolution of all reasonable doubt in favor of the claim, the Board finds that the criteria for a temporary total rating for a period of convalescence under 38 C.F.R. § 4.30 are met.

As the Board is granting the claim, it is substantiated, and there are no further duties under the Veterans Clams Assistance Act of 2000.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2).

ORDER

A temporary 100 percent rating pursuant to 38 U.S.C. Chapter 30 for a left knee surgery on March 13, 2008, requiring post-surgical convalescence is granted.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs