Citation Nr: 1340836 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 07-38 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a temporary total rating for convalescence following right foot tibial sesamoidectomy in March 2005. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April 1991 to November 1994. This appeal to the Board of Veterans' Appeals (Board) is from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO in Montgomery, Alabama, however, certified the appeal to the Board. In his December 2007 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board. The RO scheduled this hearing for April 6, 2010, but he withdrew this hearing request as evidenced by a statement in support of claim (VA Form 21-4138) received on that same date and indication of this on the copy of the hearing notification letter in the file. 38 C.F.R. § 20.704(e) (2013). He asked that the Board, instead, render a decision based on the evidence of record. This claim, as well as a claim for service connection for postoperative residuals of a right foot tibial sesamoidectomy, was remanded by the Board to the Appeals Management Center (AMC) in July 2011 for further development. After performing the needed development, the service connection claim was granted in a June 2012 rating decision. The claim on appeal here was denied again in a June 2012 Supplemental Statement of the Case. As part of the development following the July 2011 remand, the Veteran's period of active service was confirmed via an electronic record, which is now contained in his claims folder. Thus, the Board finds substantial compliance with those remand directives and will continue with the Veteran's appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's surgery did not necessitate at least one month of convalescence or result in any severe postoperative residuals. CONCLUSION OF LAW The criteria are not met for a temporary 100 percent rating from March 14, 2005 based on the need for convalescence following right foot tibial sesamoidectomy. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R § 4.30 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In an April 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a temporary total rating for convalescence following right foot tibial sesamoidectomy, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the April 2005 letter. In sum, VA's duties to notify and assist have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall. Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Temporary Total Rating Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when 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 case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. In addition, the U.S. Court of Appeals for Veterans Claims (Court) has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995). The Veteran contends he is warranted a temporary total disability for convalescence following a right foot tibial sesamoidectomy he received on March 14, 2005. A review of the Veteran's VA treatment records shows that the Veteran's March 2005 sesamoidectomy was successful. A March 14, 2005 post-operation note states there were no complications with the procedure. The Veteran was discharged the same day. He was told to "keep dressing to right foot clean, dry, intact...[r]est, elevate right foot above heart level and apply ice as needed to right ankle to control pain and swelling." He was given no restrictions to either his nutrition or weight. As for physical activity limitations, he was instructed to "[r]est, avoid unnecessary ambulation...[w]ear post-operative shoe to right foot at all times for ambulation." The Veteran returned for scheduled post-operative treatment and examination nine days later on March 23, 2005. He reported no complaints other than having to change his bandage after a bath. The examiner noted that the surgery incision was intact with no dehiscence or signs of infection, with mild edema and erythema noted. The examiner noted the right foot was healing well and ordered the Veteran to continue to keep the dressing clean, dry, and intact. He was also told again to avoid excessive ambulation. He was next seen April 27, 2005 for a post-operative follow-up. He reported pain over his incision, but had returned to wearing regular shoes. The examiner noted that there was scar tissue present, but the incision was fully healed. He noted scar tissue irritation, and instructed the Veteran to massage it daily. At the Veteran's May 2005 VA compensation examination, he reported pain flair-ups two to three times a week lasting all day. These flare ups were caused by walking and weight bearing, with relief coming after rest and relaxation. He reported he did use a cane post-operation, but was not using one at the time of the examination (May 31, 2005). He reported using shoe inserts. He denied episodes of dislocation, recurrent subluxation, inflammatory arthritis, or constitutional symptoms. He reported that he was cleared to return to work on May 23, 2005; but he also stated he had missed 11-12 days because of foot and ankle pain since then. This indicates that the date may have been incorrectly recorded by the examiner, as the VA examination was only eight days after May 23. The Veteran also stated that he "was incapacitated and on bedrest by Dr. Ingram in Prattville, Alabama." He stated that the condition had a "moderate effect" on his daily living. The Veteran submitted private treatment records from Dr. Ingram. There is a May 2005 entry that notes the Veteran's March 2005 foot surgery and that he was experiencing increasing pain as a result. The note indicates that the doctor filled out a Family and Medical Leave Act form for the Veteran. The record does not indicate that the Veteran has undergone surgery for a service-connected condition necessitating at least one month of convalescence; surgery for a service-connected condition 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 case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or that there has been immobilization by cast, without surgery, of one major joint or more. The Veteran was discharged the same day as his surgery and told to avoid unnecessary ambulation. He eventually returned to work with no documented complications of his surgical procedure reported. His surgical scar healed with little to no complications. While he has competently reported being prescribed bed rest, this is not found in his private treatment records. And even if it was the case, there is no indication that he was prescribed a month or more of convalescence in the form of bed rest. The only documented directive the Veteran received was to "avoid excessive ambulation." This does not rise to the level of convalescence by itself. Thus, for these reasons entitlement to a temporary 100 percent evaluation in this case is not warranted. Temporary total ratings are also provided for periods of hospitalization in excess of 21 days, but the Veteran was reportedly discharged the same day as his procedure. As such further consideration of a temporary total rating based on 38 C.F.R. § 4.29 (2013) is not warranted. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a temporary total rating for convalescence following right foot tibial sesamoidectomy in March 2005 is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs