Citation Nr: 1802640 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-14 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Extension of a temporary total rating under 38 C.F.R. § 4.30 beyond March 31, 2015, based on a need for convalescence following surgery for service-connected right sesamoid fracture with great toe degenerative changes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the claim in February 2017 in order to afford the Veteran a hearing before a Veterans Law Judge, and such hearing was held at the RO before the undersigned in March 2017. A transcript of the proceeding has been associated with the record. FINDING OF FACT The Veteran's June 13, 2014, right foot surgery did not require convalescence beyond March 31, 2015. CONCLUSION OF LAW The criteria are not met for an extension of a temporary total rating due to convalescence beyond March 31, 2015. 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A total rating (100 percent) for convalescence will be assigned following hospital discharge, effective from 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, if the hospital treatment of the service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative 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. See 38 C.F.R. § 4.30. Extensions of 1, 2, or 3 months beyond the initial 3 months may be made for a total of six months. 38 C.F.R. § 4.30(b)(1). Extensions of 1 or more months up to 6 months beyond this initial 6 month period may be made upon a determination that there still exist severe postoperative residuals under Section 4.30(a)(2) or immobilization by cast under Section 4.30(a)(3). 38 C.F.R. § 4.30(b)(2). Following the temporary total disability rating, the disability will be rated by the appropriate schedular evaluation. 38 C.F.R. § 4.30. The Court has held that convalescence is "the stage of recovery following an attack of disease, a surgical operation, or an injury," and recovery is "the act of regaining or returning toward a normal or healthy state." See Felden v. West, 11 Vet. App. 427, 430 (1998). The Felden Court additionally held that a veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under 38 C.F.R. § 4.30. The Veteran had an endoscopic gastrocnemius recession procedure on June 13, 2014, for a right foot equinus deformity, and was thereafter awarded a three-month period of convalescence (through the end of September 2014) under 38 C.F.R. § 4.30 wherein she was awarded a temporary 100 percent rating. In a November 2014 rating decision, the RO extended the temporary 100 percent rating assigned for convalescence to March 31, 2015. The Veteran claims that she continued to experience related symptomatology and received additional treatment related to her 2014 surgery after March 2015, and thus, the temporary total rating should be extended for an additional six months (through September 2015). VA medical records indicate that the Veteran received physical therapy at a private facility in the initial months following her right foot surgery through November 2014, with some improvement. VA medical records dated in March 2015 indicate that the Veteran experienced right lower extremity symptoms along with low back symptomatology following her June 2014 foot surgery. Collectively, these records document her symptoms as low back pain that radiated to her right lower extremity, right foot pain, right ankle swelling, numbness of her right toes, and right leg weakness. She reported experiencing increased low back pain, foot pain, and right ankle/foot swelling with prolonged sitting and with weight bearing since her 2014 surgery. These records show that the Veteran received physical therapy due to back pain, during which she reported experiencing right foot pain and swelling. A March 2015 podiatry consultation report documents the Veteran's reported symptoms 9 months after her right foot surgery, which included hip and back pain, without any improvement in the strength and weakness in her lower leg. The examination revealed reduced plantar flexion of the right lower extremity Achilles, reduced extension of the ankle joint, and worsening foot drop. An associated electromyography examination of the right foot was normal. The Veteran's podiatrist noted that gastrocnemius recessions are quick healing procedures that heal within 3 to 6 months. She stated that the Veteran's residual weakness was not from the recession and recommended a spinal evaluation and work up to determine the etiology of the Veteran's leg weakness. In a March 31, 2015 VA treatment record, the Veteran's primary care provider noted that the Veteran had worsening low back pain over the past 9 months due to her foot surgery and changes in her ambulation as her foot flexibility improved. The examiner further commented that the Veteran was unable to tolerate sitting or bear weight on the right leg for longer than 15 minutes at a time. Following an examination, the examiner diagnosed lumbar radiculopathy, commented that the Veteran still needed to complete convalescence for 6 more months (ending September 30, 2015), and ordered physical therapy to decrease the Veteran's pain, regain strength in the right leg, and improve her unstable gait. No clinical findings or diagnoses were made with regards to the Veteran's service-connected right foot. A May 2015 VA foot conditions examination report includes the Veteran's report of improvement in the alignment of her foot and right-sided motor strength following her June 2014 foot surgery. She continued to endorse persistent pain and swelling and some weakness of dorsiflexion of the foot. Her foot pain was exacerbated by weight bearing and the Veteran reported that she was limited in standing, sitting, and walking due to right foot pain and swelling. The Veteran reportedly used a cane to ambulate due to right leg weakness and instability and a brace for her right foot drop. She stated that she had been diagnosed with right-sided sciatica and had paresthesias in the right foot with numbness of all of her right toes since the surgery. The examiner noted that the Veteran still had weakness of dorsiflexion of the right foot approximately one year after her surgery and that her podiatrist noted in March 2015 that the weakness was not likely secondary to the surgery. The physical examination revealed pain on weight-bearing and non weight-bearing, swelling, disturbance of locomotion, interference with sitting and standing, and limitation of standing and walking due to pain and weakness. The examiner identified the functional impact due to the Veteran's service-connected disability as limited standing, sitting, and walking due to persistent swelling and numbness of the right foot. Given the foregoing evidence, the Board finds the preponderance of the evidence is against an extension of the temporary total rating. Initially, the Board again highlights that the Veteran has already been awarded a temporary total rating for a 9-month period for convalescence following her right foot surgery, from June 2014 to March 2015. Thus, under 38 C.F.R. § 4.30, the Veteran, at most, could only be awarded an additional 3 months of convalescence, or from April 1, 2015, through June 30, 2015. The evidence dated during the period at issue simply does not show that an extension of the total temporary rating is warranted. There is no evidence that indicates the Veteran experienced severe postoperative 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, or that her service-connected disability required immobilization by a cast. To the contrary, postoperative medical records and the May 2015 VA examination report show the Veteran's experienced some improvement of her right foot functioning following physical therapy. These record fail to show any pertinent clinical findings or diagnoses that would suggest that the Veteran experienced severe postoperative residuals or that her service-connected right foot disability, alone, required additional treatment. Instead, she required additional treatment for a nonservice-connected back condition and neurological complaints. Notably, none of the Veteran's treating providers indicated that she required further convalescence for her service-connected right foot disability after March 2015. In reaching this determination, the Board acknowledges the March 2015 statement from the Veteran's primary care provider indicating that she required an additional 6 months of convalescence. The clinician's comment, however, was in reference to the Veteran's postoperative back and right leg neurological symptoms (diagnosed as lumbar radiculopathy), which are not service-connected. The clinician did not identify any clinical findings or symptomatology attributable to the right foot or explicitly indicate in any way whatsoever that the Veteran required additional convalescence due to her service-connected foot disability. Indeed, the clinician noted that the Veteran's right foot flexibility had improved. Thus, the clinician's March 2015 statement regarding the need for convalescence for the nonservice-connected back condition does not support the Veteran's claim for an extension of the temporary total rating. The Board acknowledges that the Veteran's right foot has continued to be symptomatic following the surgery. However, her reports of pain and functional impairment, as well as the development of residual, non-service connected conditions, are not evidence supporting an extension of a temporary total rating for surgical convalescence. The Board notes that the assignment of a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continued to be symptomatic following surgery; there must be a need for convalescence, as that term is understood, which is not shown in this case. To the extent that the Veteran reports continued right foot symptomatology, her post-surgical right foot symptoms are addressed by the disability rating assigned since April 1, 2015. The medical records following the surgery support an appropriate convalescence period and a temporary total rating from June 13, 2014, to March 31, 2015. Accordingly, an extension of a temporary total convalescent rating beyond March 31, 2015, under 38 C.F.R. § 4.30 is not warranted. ORDER The claim of entitlement to an extension of his temporary total rating under 38 C.F.R. § 4.30 is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs