Citation Nr: 18146325 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-17 044 DATE: October 31, 2018 ORDER Entitlement to an extension beyond June 30, 2013 of a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 related to service-connected left metatarsophalangeal joint (MTPJ) degeneration with reconstruction to include scar is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for deterioration of the right first MTPJ, status post resection, proximal third of phalanx with arthritis is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the medical evidence suggests that the Veteran’s left MTPJ surgery resulted in severe post-operative residuals because weightbearing on the left foot was prohibited following the surgery through October 31, 2013. CONCLUSION OF LAW The criteria for entitlement to a temporary total convalescence rating following left great toe surgery have been met as of July 1, 2013 through October 31, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to September 1989. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that during the appeal period, the Veteran through her attorney, in a letter dated September 2018 argued that her February 2013 claim for increased rating of her right MTPJ disability also encompassed claims for increased ratings for all her service-connected disabilities, to include her status post fracture of the left fifth toe with chronic bursitis, bilateral MTPJ linear scars, and left MTPJ joint degeneration. These issues have not been adjudicated by the RO and the Board cannot adjudicate them in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). They are therefore referred to the AOJ to include, to the extent appropriate, informing the Veteran and her representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and provided such forms. See 38 C.F.R. § 3.155(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (continuing to provide for Board referral of unadjudicated claims). Extension of Convalescence beyond June 30, 2013 The Veteran asserts that an extension of the temporary total rating based upon convalescence for left MTPJ disability is warranted beyond June 30, 2013, as she required the use of crutches and a wheelchair until October 31, 2013. A temporary total convalescent 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. 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. See 38 C.F.R. § 4.30. Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3) and extensions of 1 or more months up to a 6-month period may be made under § 4.30(a)(2) or (3). After undergoing a failed March 2011 surgery, the Veteran underwent surgery on the service-connected left great joint of the great toe on April 19, 2013. In a March 2013 letter, the Veteran’s podiatrist reported that the Veteran would require at least 6 to 8 weeks of convalescence and released the Veteran to light work duties on June 3, 2013. The Veteran was scheduled to undergo x-rays to evaluate healing post-surgery and to discuss increasing weightbearing, with a possible plan of progressing to full weightbearing with crutches if no pain or increased swelling were noted. The Board notes that the Veteran was awarded a temporary total rating for convalescence for her left MTPJ disability under 38 C.F.R. § 4.30 from April 19, 2013 to June 30, 2013, essentially two months after the month of the Veteran’s surgery. A July 1, 2013 podiatry outpatient note indicates that the Veteran presented for a postoperative follow-up ambulating in a cast with crutches. The Veteran’s cast was removed and she was fitted with a postoperative left shoe to be worn with partial weightbearing. She was assessed as healing. Approximately three weeks later, she was ambulating with crutches and wore the postoperative shoe. She was instructed to continue protective function with the postoperative shoe and to start partial weight to full weightbearing with crutches in the upcoming week. By August 7, 2013, the Veteran remained on crutches with slight weightbearing, but three weeks later, the Veteran reported she was walking on her foot with minimal use of crutches. She reported mild swelling, but no pain. She was instructed to continue protected weightbearing and told she may stop using the crutch at that time. A September 2013 podiatry note indicates the Veteran was healing and still wearing the postoperative shoe. No crutch use or prohibitions on weightbearing were noted. Finally, on October 28, 2013, she was continued on protected weightbearing with orthoses and a turf toe device. Her post-operative course was assessed as normal. The Veteran’s podiatrist noted that the Veteran was currently restricted from stairs, ramps, ladders, squatting, walking long distances and lifting greater than 50 pounds, as she was a still healing from her great toe joint surgery that would limit her activity for approximately one year. According to the podiatrist, over activity involving walking and standing greater than a standard 40-hour work week could potentially permanently damage the Veteran’s surgical site and cause failure of the joint fusion. He opined that the Veteran should remain on restricted duty of 40-hour work weeks, five days a week through April 2014. On review of all evidence, and resolving any doubt in the Veteran’s favor, the Board finds the evidence is in equipoise as to whether an extension is warranted. The July 1, 2013 podiatry note shows that the Veteran was issued postoperative shoes and crutches with partial weightbearing. Although by August 2013, she was instructed she may stop using her crutch, the October 28, 2013 work restrictions suggest that she was prohibited from normal weightbearing based on work restrictions in prolonged standing and walking. Thus, resolving the benefit of the doubt in the Veteran’s favor, the Board extends her convalescence period from July 1, 2013 to October 31, 2013. In sum, the Board concludes that an extension of a temporary total convalescent rating under the provisions of 38 C.F.R. § 4.30 is warranted until October 31, 2013. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.10; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Right MTPJ Disability With respect to the evaluation of the right MTPJ disability, the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The most recent VA examination report here, dated April 2014, reveals that testing in passive motion, weight-bearing, and non-weightbearing were not conducted. In light of Correia, the Veteran must be provided a new VA examination, which provides testing in active motion, passive motion, weightbearing, and non-weightbearing. The matter is REMANDED for the following action: 1. Schedule the Veteran for VA examination(s) to ascertain the current severity and manifestations of her service-connected right great toe disability. The claims file should be made available to the examiner for review in connection with the examination. The examiner must include testing in the following areas for both the right and left great toes: active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must provide a complete rationale for any opinion given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel