Citation Nr: 1511887 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 10-31 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to extensions of temporary total evaluations due to convalescence for left knee surgery from April 1, 2009 to August 9, 2009, and from October 1, 2009 to October 27, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1974 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions dated in June 2009, August 2009, and January 2010 by the Department of Veterans Affairs Regional Office, located in Nashville, Tennessee (RO). The June 2009 and August 2009 rating decisions granted a temporary total rating to the left knee disability pursuant to 38 C.F.R. § 4.30 from February 10, 2009 to March 31, 2009, and from August 10, 2009 to September 30, 2009, respectively, and continued a 20 percent evaluation. In the January 2010 rating decision, the RO granted a temporary total rating to the left knee disability pursuant to 38 C.F.R. § 4.30 from October 27, 2009 to December 1, 2009, and assigned a 30 percent evaluation thereafter. The Veteran appealed these rating decisions, and he specifically asserted entitlement to extensions of temporary total rating from April 1, 2009 to August 9, 2009 and for from October 1, 2009 to October 27, 2009. The issue has been characterized, as reflected on the title page. In November 2012, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. The Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2014). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file has been considered in conjunction with this decision. FINDINGS OF FACT The Veteran's February 10, 2009 left knee surgery continued to require convalescence through August 9, 2009, and his August 10, 2009 left knee surgery continued to require convalescence through October 27, 2009. CONCLUSION OF LAW The criteria for the assignment of extensions of temporary total rating based on the need for convalescence following the left knee surgery from April 1, 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.30 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims entitlement to extensions of a temporary total rating from April 1, 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009 based on convalescence due to left knee surgeries performed on February 10, 2009 and August 10, 2009. 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 cast, 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. The termination of total ratings under this section are not subject to the notice and other procedural requirements under 38 C.F.R. § 3.105(e). An extension of 1, 2, or 3 months beyond the initial 3 months may be granted based on the factors enumerated above, and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager. Id. The Veteran underwent left knee surgery in February 2009 at the VA medical facility. A temporary total convalescent rating has been assigned effective the date of the surgery through April 1, 2009, with a 20 percent rating for the Veteran's left knee disability reinstated effective April 1, 2009. The Veteran underwent a second left knee surgery in August 2009 at the same VA medical center. He was assigned a temporary total convalescent rating has been assigned effective the date of the surgery through October 1, 2009, with a 20 percent rating for the Veteran's left knee disability reinstated effective October 1, 2009 to October 27, 2007. A total convalescent rating was assigned for one month following each of the surgeries in February 2009 and August 2009. The question on appeal is whether the total convalescent rating may be extended another four months from April 1, 2009 to August 9, 2009, and then extended another month from October 1, 2009 to October 27, 2009. VA treatment records show that following the February 2009 left knee surgery the Veteran continued to experience significant left knee pain, he ambulated with a pronounced limp, and he required the use of assistive devices. A March 19, 2009 VA treatment record shows that the Veteran was given a knee brace and he was instructed to use forearm crutches until he was able to bear full weight on his knee. An April 2009 VA treatment record noted that the Veteran's knee brace was ill-fitted, and he continued to walk with a limp and he continued to use crutches. In May 2009, he was given a new knee brace and it was noted that there was no change in his symptoms. In a May 6, 2009 VA treatment record, the VA physician stated that the Veteran would be temporarily disability for six more weeks while he receives additional treatment. In June 2009, the Veteran received injections to treat his left knee symptoms, but subsequent July 2009 VA treatment records noted that the Veteran complained of increased left knee pain following the injection. A July 2009 VA treatment record noted that the off-the-shelve knee brace was a poor fit and it was recommended that the Veteran receive a custom knee brace. It was also noted that the Veteran should be scheduled for a total knee replacement. In a July 15, 2009 VA treatment note, the VA physician stated the Veteran would remain in temporarily disabled status for an additional eight weeks while he custom brace was being fabricated. On August 10, 2009, the Veteran underwent a second left knee surgery at the VA medical facility. In a September 2, 2009 VA treatment record, it was noted that the Veteran was not able to return to employment until further evaluation and the Veteran would likely require total knee replacement. Subsequent VA medical records show that following the second surgery, the Veteran required the use of crutches to ambulate and he was unable to work because of his left knee disability. See VA treatment records dated in September 2009 and the report of an October 14, 2009 VA spine examination report. The Veteran underwent a total left knee replacement at the VA medical facility on October 27, 2009. In his November 2012 hearing testimony, the Veteran stated that he required the used crutches and he was unable to work throughout the entire period from February 2009 through October 2009. Resolving reasonable doubt in favor of the claim, the Board finds that extensions of the total convalescent rating from April 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009 is warranted. The Veteran was unable to ambulate without the use of crutches and he was not authorized to return to work by his attending VA physician throughout the entire period under appeal. Notably, the May 2009, July 2009, and September 2009 statements by the attending VA physician demonstrate that the Veteran was not authorized to return to work during the applicable periods. While those authorizations were prospective in nature, the medical statements still indicate that the Veteran was found to continue to need up to two months of recovery each time. The need for recovery was due in part to ongoing left knee pain and abnormal weight-bearing resulting from the left knee surgery. Moreover, the fact that the Veteran required additional surgeries in August 2009 and October 2009 is highly indicative that he had not recovered from the initial February 2009 surgery. Pertinently, section 4.30 does not require that weight-bearing be restricted, or that any of the circumstances mentioned in factor 2, be present in order to qualify for a total convalescent rating. Rather, surgery necessitating at least one month of convalescence is itself an independent factor, and an extension of the convalescent rating may be made on this basis for up to six months. As probative medical evidence shows that the Veteran continued to require convalescence for the periods from April 1, 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009, appropriate extensions of the temporary convalescent rating for those periods is warranted. See id. The Veteran does not argue and there is no evidence suggesting that he required convalescence as defined under section 4.30 beyond December 1, 2010. Accordingly, further consideration of this issue is not warranted. In sum, entitlement to extensions of the temporary total convalescent rating from April 1, 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009 is granted. See 38 C.F.R. §§ 3.102, 4.3, 4.30. ORDER Extension of a temporary total rating based on convalescence for left knee surgery from April 1, 2009 to August 9, 2009 and from October 1, 2009 to October 27, 2009 is granted, subject to the law governing payment of monetary benefits. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs