Citation Nr: 1752448	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  10-01 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a temporary total disability rating for convalescence following February 2009 foot surgery.

(The Board notes that the issue of entitlement to a waiver of overpayment of debt, to include the validity of the debt, will be addressed at a later date upon the completion of the Veteran's requested videoconference hearing.)


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1984 to January 1993.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

This claim was subsequently remanded by the Board in November 2013 for additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268 (1998).  


FINDING OF FACT

The Veteran underwent surgery in February 2009 for bilateral plantar fasciitis, a nonservice-connected disability.


CONCLUSION OF LAW

The criteria for the assignment of a temporary total disability rating for convalescence following February 2009 foot surgery have not been met.  
38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.30 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is currently seeking entitlement to a temporary total disability rating for convalescence following February 2009 foot surgery.

Generally, veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b) (2017).  When the disability is temporary in nature, such as during a period of convalescence following surgery, temporary total disability ratings may be awarded. 

A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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.  38 C.F.R. § 4.30(a) (2017).  This rating will be assigned without regard to other provisions of the rating schedule. Extensions beyond the initial three months may be made for a maximum of one year.  38 C.F.R. § 4.30(b)(2) (2017).

A temporary total convalescence rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery.  38 C.F.R. § 4.30 (2017).  Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability. 

Here, the undisputed facts of the case establish that the Veteran underwent surgery for bilateral plantar fasciitis on February 20, 2009.  However, the Veteran is not currently service-connected for plantar fasciitis.  As the benefit sought is only available for convalescence stemming from the treatment of a service-connected disability, the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Briefly, the Board notes that the Veteran's claim for entitlement to service connection for plantar fasciitis was denied in an August 2011 rating decision.  The Veteran did not submit a substantive appeal with regard to that issue, and the Board finds no basis in the record to challenge the August 2011 rating decision at this time.  

Thus, the Board sympathizes with the Veteran regarding the impact of his February 2009 surgery on his capacity to function.  Regrettably, the circumstances of this case do not give rise to entitlement to the benefit sought on appeal, and the claim must be denied as a matter of law.  See Sabonis, 6 Vet. App. at 426.  The preponderance of the evidence is against the claim and there is no doubt to be resolved.  38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).

ORDER

Entitlement to a temporary total disability rating for convalescence following February 2009 foot surgery is denied.  




____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs