Citation Nr: 1620200	
Decision Date: 05/18/16    Archive Date: 05/27/16

DOCKET NO.  13-28 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a temporary total rating following August 13, 2012, foot surgery.


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J.A. Acosta Davis, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from April 1981 to April 1985. 
This matter comes to the Board of Veterans' Appeal (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In March 2016 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record.


FINDING OF FACT

From August 12, 2012, to September 24, 2012, the preponderance of the evidence of record showed that the Veteran had severe postoperative residuals from August 13, 2012, surgery on his service-connected right foot disability, including swelling, infection, pain on weight bearing, and the inability to return to his job. 


CONCLUSION OF LAW

From August 13, 2012, to September 24, 2012, the Veteran met the criteria for a temporary total convalescent rating based on the need for convalescence following August 13, 2012, foot surgery.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.159, 4.30 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for a temporary total rating for convalescence.

The Temporary Total Rating Extension Claim

The Veteran and his representative contend, in substance, that the claimant is entitled to a temporary total convalescent rating from August 13, 2012, the date of his surgery on his foot, to September 24, 2012, because during this period he was unable to work, had a return infection, pain on weight bearing and swelling.   

In this regard, in statements of record and at his March 2016 hearing, the Veteran reported having  a post operative infection, recurrent follow up treatment, constant pain that prevented weight bearing, the inability to return to his job, swelling, and pressure in his foot. The Veteran also submitted statements from his podiatrist and his wife regarding his symptomatology after the surgery. The Board finds that the lay reports regarding the severity of the Veteran's adverse symptomatology are both competent because they are observable by lay persons and credible because they are consistent with the medical evidence of record.  See Davidson. 

In summary, the Board finds that the Veteran's total disability picture shows that he had severe postoperative residuals from his August 13, 2012, foot surgery from August 13, 2012, to September 24, 2012, when he returned to work part time.  Under such circumstances and granting the Veteran the benefit of any doubt in this 
matter, the Board concludes that the criteria for a temporary total convalescent rating from August 13, 2012, to September 24, 2012, have been met and the appeal is granted.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).





	(CONTINUED ON NEXT PAGE)

ORDER

A temporary total rating from August 13, 2012 to September 24, 2013, based on the need for convalescence following August 13, 2012, foot surgery, is granted.




______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs