Citation Nr: 18146488 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-23 283 DATE: October 31, 2018 ORDER An extension to July 31, 2013, but not further, for a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence is in equipoise as to whether the right foot surgery performed on April 8, 2013, required convalescence until July 31, 2013. CONCLUSION OF LAW The criteria for the assignment of a temporary total disability rating for the service-connected right foot disability due to convalescence until July 31, 2013, but not further, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to August 1985, with periods of time lost from July 1982 to December 1982 and with three months and 22 days of prior inactive service. This case comes to the Board of Veterans’ Appeals (the Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence. In November 2017, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with his electronic claims file. The undersigned Veterans Law Judge granted a motion to hold the record open for 30 days for submitting additional evidence. That 30-day period has expired. 38 C.F.R. § 20.709 (2017). During the hearing, the Veteran submitted a statement from a VA podiatrist. This evidence was received after an April 2016 statement of the case. The Veteran's substance appeal was received after February 2, 2013. Therefore, that evidence shall be subject to initial review by the Board because neither the Veteran nor his representative requested in writing that the agency of original jurisdiction initially review such evidence. Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). In fact, the representative requested a waiver of consideration by the agency of original jurisdiction. Hearing transcript, page 2. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on February 9, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. A February 2015 rating decision codesheet reflects that the RO assigned a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence from April 8, 2013, to June 30, 2013. A February 2015 notice letter informing the Veteran of the February 2015 rating decision shows that the Veteran was receiving compensation at the 100 percent disability rating level effective May 1, 2013, and that his compensation was reduced effective July 1, 2013. An April 2016 statement of the case, however, states that the RO had not granted a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence. Given the decision in February 2015, the issue before the Board is not whether a temporary total evaluation should be granted but instead whether an extension beyond June 30, 2013, for a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence. 1. Entitlement to an extension beyond June 30, 2013, for a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Governing law and regulations The provisions of 38 C.F.R. § 4.30 pertaining to temporary total evaluations based upon convalescence provide that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a 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 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). (3) Immobilization by cast, without surgery, of one major joint or more. The temporary total evaluation can be continued for a period of one, two, or three months effective from the first day of outpatient release. 38 C.F.R. § 4.30 (2012). The United States Court of Appeals for Veterans Claims (the Court) has held that notations in the medical record as to a veteran’s incapacity to work after surgery must be considered in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). Furthermore, the Court has noted that the term “convalescence” does not necessarily entail in-home recovery. Felden, 11 Vet. App. At 430. Analysis The Veteran underwent a right foot hammertoe correction at the third toe performed on April 8, 2013. The RO assigned a temporary total evaluation based on the service-connected right foot disability requiring a period of convalescence from April 8, 2013, to June 30, 2013. There is no evidence that the surgery resulted in 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) after June 30, 2013. In fact, VA treatment records reflect that on April 29, 2013, the Veteran was instructed to stop using crutches. Thus, the question is whether there was a need for convalescence after June 30, 2013. VA treatment records reveal that on April 29, 2013, the Veteran was wearing a postoperative shoe on the right foot and a slip-on sandal on the left foot. On May 16, 2013, the Veteran was wearing slip-on sandals on both feet. He had throbbing pain in the right third toe. On May 20, 2013, he had no pedal complaints. Physical examination revealed mild edema at the right third toe at the site of the hammertoe correction. It was noted that the surgical site was examined and appeared to be healing fine. He was advised to continue normal shoe wear and to return to the clinic in a month for a final follow up appointment. On June 20, 2013, it was noted that the Veteran no longer had pain. Physical examination revealed mild edema at the right third toe at the site of the hammertoe correction. It was noted that the Veteran was doing well and that he should return to the clinic when necessary. On July 14, 2013, the Veteran was seen and examined for his right foot. A podiatrist noted that the Veteran should have a gradual return to activity. In a November 2017 statement, a VA podiatrist stated that the Veteran was under the care of the podiatry service until June 20, 2013, for the surgical correction of the right third toe hammertoe. Given that the Veteran still needed treatment on July 14, 2013, and a gradual return to activity was recommended at that time, the evidence is in equipoise as to whether the right foot surgery performed on April 8, 2013, required convalescence until July 31, 2013. The remaining question is whether convalescence was required past July 31, 2013. None of the pre-surgical, surgical, or post-surgical VA treatment records, to include records prepared by the surgeon, indicate that the convalescence was necessary past July 31, 2013. The Veteran was not treated for his right foot disability in August, September, and October 2013. The weight of evidence is against a finding that the right foot surgery performed on April 8, 2013, required convalescence past July 31, 2013. In sum, the Board finds that this medical evidence shows a need for convalescence until July 31, 2013, but no further. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel