Citation Nr: 18154809 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-56 133 DATE: November 30, 2018 ORDER Entitlement to an extension of a temporary 100 percent rating for convalescence due to left total knee arthroplasty revision up to June 23, 2016, is granted. FINDING OF FACT The residuals from the Veteran’s April 2016 left total knee arthroplasty revision necessitated convalescence up to June 23, 2016. CONCLUSION OF LAW The criteria for an extension of a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30 up to June 23, 2016, for left total knee arthroplasty revision performed in April 2016 have been met. 38 U.S.C. §§ 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from October 1974 to January 1976. Entitlement to an extension of a temporary 100 percent rating for convalescence due to left total knee arthroplasty revision A temporary total disability rating for convalescence will be assigned effective 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 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. An extension of 1, 2, or 3 months beyond the initial three months may be made under paragraphs (a)(1), (2) or (3) (discussed above). 38 C.F.R. § 4.30(b)(1). Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) (discussed above) under the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). Therefore, the maximum duration of a temporary total disability rating for convalescence is 12 months from the date of admission. 38 C.F.R. § 4.30. The Court has defined convalescence as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” See Felden v. West, 11 Vet. App. 430 (1998) (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)). The Court has defined recovery as “the act of regaining or returning toward a normal or healthy state.” Felden v. West, 11 Vet. App. at 430 (citing WEBSTER’S MEDICAL DESK DICTIONARY 606 (1986)). The Court has also noted that the term “convalescence” does not necessarily entail in-home recovery. In the case at hand, the Veteran has been granted a temporary 100 rating for left total knee arthoplasty from February 4, 2015, to April 1, 2016. On April 4, 2016, the Veteran underwent surgery for left total knee arthroplasty revision, for which he now seeks an extension of a temporary total 100 percent rating for one year following this surgery. Turning to the evidence of record, the April 13, 2016, discharge note regarding the left total knee arthroplasty revision indicates that the Veteran was doing well and “only taking 2 dilaudid per day for pain.” The note indicates that the Veteran was “able to walk with just a cane and feels much better than he did before surgery, and his pain is different.” The note indicates that there was no fever or chills and no new concerns. The note also indicates that the Veteran went back to work at the recycling center on Saturday; the note states that the Veteran’s job is primarily sitting, so he wanted to be released for that. As to the musculoskeletal system, the discharge note indicates that there were no muscle aches or weakness and no arthralgias/joint pain or swelling in the extremities or incision on the left knee. As to post-operative exam, the report indicates there was no tenderness or warmth. The discharge note indicates there was swelling, passive and active motion were limited, and intact neurovascular. The report indicates that the site incision was clean. As to after care, the note indicates a physical therapy referral to rehab after total knee arthroplasty revision on the stationary bike ASAP. The report lists the durations as 2-3 times a week for six weeks for gait training, knee rehabilitation and patellofemoral stabilization for the left knee. The discussion notes indicate that the Veteran will continue to work on his exercise as instructed at the hospital. The note also indicates that he is making steady progress in his motion and will walk once an hour and elevate his leg when resting. An April 13, 2016, summary of care record notes the physical therapy referral and lists 24 visits: 2-3 times a week for six weeks. A May 2016 physical therapy treatment note from Marlan County Health Systems indicates that the Veteran’s treatment will include the evaluation, stretching and strengthening exercised, patient education, manual therapy, gait training, balance training, and modalities such as compression and ice. The report indicates that the Veteran tolerated the program on that day, which included range of motion activities as well as quadriceps recruitment activities. The report indicates that the Veteran presented with improvement of 5 degrees in his knee flexion by the end of the session. The report indicates that the Veteran will also have manual therapy by physical therapy work on joint mobility, edema, massage, as well as stretching. As to the assessment, the report indicates that the Veteran reported pain of 2-4/10 on average. The report reflects his statements that his knee feels significantly better than it did after his original total knee surgery. He stated that his biggest goal is to achieve normal range of motion of the left knee again and also strength. The report states that the Veteran will benefit from physical therapy to reduce inflammation to improve knee range of motion as well as strength. The report also indicates that the plan was to see the Veteran 2-3 times per week for the duration of his “scrip” (prescription) of two visits through August 19, 2016. A June 23, 2016, physical therapy discharge note for the period from May 2, 2016, to June 3, 2016, indicates a discharge reason of “maximum benefits.” The note indicates that the Veteran was unable to kneel but met all other goals. In June 2016, the Veteran underwent a VA examination for his left knee. The report notes that the Veteran had revision of his left total knee arthroplasty with patellar components and tibial spacers revised. The report indicates that the Veteran’s left knee initial range of motion measured flexion 10 to 110 degrees and extension 110 to 10 degrees. Muscle strength testing was normal, and there was no muscle atrophy and no ankylosis of the left knee. There was no joint instability or recurrent effusion of the left knee. The examiner listed loss of motion as a residual of the 2015 and 2016 left knee surgeries. The examiner also indicated that the left knee incision scar was well healed. The report indicates no use of assistive devices. A July 2016 follow up note for the April 2016 left total knee arthroplasty revision indicates that the Veteran was having increased swelling and Charlie horse cramps. The examiner noted that the Veteran was being seen after having cramping in his left lower extremity, including quadriceps, calf and toes. The report indicates that the cramps would last 20-30 minutes, and the Veteran would have to put pressure on the foot to relieve them. The report indicates that the Veteran stated that the cramping has gotten better and that he has not been experiencing them as much. The examiner noted that the Veteran is 3 1/2 months post-op. The examiner indicated that the Veteran says he “feels a little foolish now since he really is not having any problems and is really pretty happy with his total knee replacement.” The examiner noted that the Veteran’s second concern is with VA. The examiner indicated that the Veteran stated that he needed a definition of “convalescent time” for VA. The examiner stated that he “would estimate 6 months.” As to post-op exam, the report indicates there was no swelling, tenderness or warmth. The wound was indicated as clean and dry, and the examiner indicated that the Veteran had appropriate range of motion and intact neurovascular. In the discussion note, the examiner stated, “I really do not know why [the Veteran] had these episodes of cramping in this left lower extremity. My sincere hope is that it is because he has gotten more active, and his muscles responded with cramping to increased demands put on them and that he is getting in a little better shape and that is why the cramping has resolved.” The report indicates that the plan was “just watch this for the present and have him return to the clinic in another couple of months for follow up.” As to lay statements, the Veteran stated in his August 2016 notice of disagreement that he is including a letter from his doctor that his convalescence period should be about six months. The Board notes that letter (the July 2016 letter) has been discussed. The Veteran stated that he is not able to perform any work duties lasting more than 10 hours per week and that this is “light” duty, i.e. checking people into the compost site. He stated that the most he has ever worked since the surgery is 10 hours per week. In the November 2016 Form 9, he stated that he believes he should have been granted a longer convalescence due to the fact he had to have a second surgery. He stated that he still has a great deal of difficulty with his knee. He also stated that he was including physical therapy notes. The Board notes that it has also discussed these physical therapy notes, which are those dated between May and June 2016. Having reviewed the evidence of record, the Board finds that an extension of a temporary total rating for convalescence is warranted up to June 23, 2016, the date the Veteran was discharged from physical therapy. At the outset, the Board acknowledges that the Veteran seeks an extension of a temporary total rating for convalescence for one year after his April 2016 revision surgery. However, such an extension is not warranted. In the February 2015 rating decision, the Veteran was granted service connection for left total knee arthroplasty and assigned a temporary 100 percent rating from February 4, 2015, up to April 1, 2016. The 100 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, which provides a 100 percent rating for one year following implantation of a prosthesis for a total knee replacement. As the April 4, 2016, surgery was a revision surgery to his 2015 total knee replacement, not a new implantation, he is not entitled to a 100 percent rating under Diagnostic Code 5055 for the revision surgery. He has already been granted a 100 percent rating for one year for the implantation of the prosthesis. As to the provisions of 38 C.F.R. § 4.30 allowing for an extension of a temporary total rating for convalescence, while a one-year extension is possible under this provision, the Board may only grant an extension up to six months. Any extension beyond an initial six months must be approved by Veterans Service Center Manager. See 38 C.F.R. § 4.30(b). However, the Board does not find that an extension of six months is warranted. The Board finds that the criteria of 38 C.F.R. § 4.30 are met up to June 23, 2016. The April 2016 discharge note indicates that the Veteran was doing and feeling well after the surgery. The discharge note also indicates that the Veteran had returned to work. However, the discharge note and subsequent physical therapy notes of record reflect that the Veteran was prescribed physical therapy for his left knee for six weeks following the April 2016 surgery. Specifically, the Veteran was in physical therapy for gait training, knee rehabilitation and patellofemoral stabilization, which the Board finds are within the Court’s meaning of recovery as the act of regaining or returning toward a normal or healthy state. As such, the Board finds that the Veteran’s physical therapy is considered convalescence. Pursuant to 38 C.F.R. § 4.30(b)(1), an extension for convalescence is allowed under 38 C.F.R. § 4.30(a)(1-3), which includes surgery necessitating at least one month of convalescence. Thus, based on the Veteran’s need for physical therapy up to June 23, 2016, the Board finds that he was convalesced in excess of one moth, up to June 23, 2016, but no further. While the initial physical therapy note indicates that the Veteran would be seen up to August 2016, he was discharged from physical therapy on June 23, 2016. There is no basis for an extension beyond June 23, 2016. The provisions of 38 C.F.R. § 4.30 (b)(2) are not applicable as the record does not reflect severe postoperative residuals after this date. While the Veteran used a cane following the April 2016 surgery, the June 21, 2016, VA examination report indicates no use of an assistive device for the left knee at that time. As such, being granted an extension up to June 23, 2016, the Veteran is now in receipt of an extension for the recovery period when a cane was used. Nor has the Veteran indicated use of the cane beyond this period. Additionally, his wounds were consistently indicated as clean and well-healed with no swelling. As such, there is also no indication of incompletely healed surgical wounds. Nor is there any indication of stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement. Nor is 38 C.F.R. § 4.30 (a)(3) applicable as the Veteran did have surgery for the left knee. The Board acknowledges the July 2016 letter indicating a convalescence time of six months. However, this report is not consistent with the overall record, to include the actual discharge and physical therapy notes relating to the revision left total knee arthroplasty. As discussed, these reports reflect physical therapy prescribed for six weeks and lasting until June 23, 2016. There is no additional evidence of record of convalescence beyond June 23, 2016. Specifically, the June 23, 2016, physical therapy discharge note indicates completion of all goals except kneeling, and the Veteran was discharged based on maximum benefits. There are also no reports of physical therapy after this discharge note. Moreover, medical evidence after the June 2016 physical therapy discharge note reflects that there was no swelling, tenderness or warmth of the Veteran’s left knee or issues with the wound. In line with the lack of symptoms found in the medical evidence after June 23, 2016, the July 2016 treatment note reflects the Veteran’s statements that he has no problems and is “totally happy” with his left knee replacement. Moreover, the Board notes that the July 2016 examiner provided the six months frame as an estimate to the Veteran’s request for a “convalescence time” for VA purposes. The examiner did not provide any further statement as to convalescence or what it would entail. While such a statement is not always necessary, the time period provided appears to contradict other evidence in the report. In the July 2016 report, the examiner noted only symptoms of cramps, for which the examiner stated he did not have an etiology. The examiner also indicated that the Veteran had an appropriate range of motion and that there was no swelling, tenderness or warmth post-operatively for the left knee. Given these findings and the overall record, the Board finds that the statement regarding six months of convalescence is outweighed by other medical evidence of record and is therefore less probative. Given the most probative evidence, the Board finds, as discussed, that the Veteran was convalesced up to June 23, 2016. The Board also acknowledges that the Veteran’s left total knee arthroplasty revision has resulted in some level of occupational impairment. While he indicates that he has not worked more than 10 hours a week since the surgery, the Veteran did return to work, even with modified restrictions. In this decision, he has been granted an extension for the period he was engaged in physically therapy, although the record, medical evidence and his statements, reflect that he was also working at this time. As to the remaining period for which he asserts that he only worked 10 hours a week, the Board notes that a temporary total convalescent rating contemplates only a temporary period of time required to recover from the immediate effects of surgery. See 38 C.F.R. § 4.30. Thereafter, any chronic residual disability is rated under the schedular criteria for the disability. In this regard, 38 C.F.R. § 4.1 provides that “the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from service-connected diseases and injuries” and that “the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses.” As such, the assigned 30 percent disability rating for the Veteran’s left knee disability compensates the Veteran for the impact of his left knee on his ability to work. Given the overall record, the Board finds that an extension of a temporary total rating for convalescence due to left total knee arthroplasty revision is warranted up to June 23, 2016, but not thereafter. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel