Citation Nr: 18156142 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-43 566 DATE: December 11, 2018 ORDER Entitlement to a temporary total rating based on a period of convalescence following February 2014 surgical treatment for thoracic outlet syndrome is granted. FINDING OF FACT The Veteran required two months of convalescence following the February 2014 surgical removal of a rib and resultant pneumothorax. CONCLUSION OF LAW The criteria for the assignment of a temporary total rating until April 30, 2014, based on need for a period of convalescence following February 2014 surgical treatment of thoracic outlet syndrome, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1989 to June 1995 and from January 1998 to January 2005. 1. Entitlement to a temporary total rating based on a period of convalescence following February 2014 surgical treatment for thoracic outlet syndrome. The Veteran contends that he is entitled to a temporary total convalescent rating under 38 C.F.R. § 4.30 following February 2014 surgical treatment for thoracic outlet syndrome. At his May 2017 hearing the Veteran reported that he had a collapsed lung during the surgery and that he was unable to begin physical therapy until the end of April due to his condition. A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30; effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. A total rating will be assigned under 38 C.F.R. § 4.30 if treatment of a 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 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; or (3) immobilization by cast, without surgery, of one major joint or more. Id. The March 4, 2014 private hospital discharge report indicates that, following surgery, the Veteran had a weak grip of the right hand, but it had much improved prior to discharge. The Veteran was prescribed morphine tablets twice a day and oxycodone on an as needed basis. Subsequently the Veteran developed right hand pain and tingling and he sought treatment at a VA emergency room on March 18, 2014. Three days later the Veteran again sought treatment at a VA emergency room due to right forearm/hand swelling and numbness/tingling in the radial distribution of the operative arm. The examiner stated that the Veteran was still healing from his surgery and suspected some swelling was compromising his plexus. He advised the Veteran to keep his overall activity low and prescribed the Veteran additional medication. The Board finds that the above medical evidence indicates that the Veteran’s surgery for his service-connected thoracic outlet syndrome necessitated at least one month of convalescence. Furthermore, VA treatment records dated in April 2014 reveal that the Veteran continued to have pain, that he was prescribed additional medication for treatment of pain, and that he had started physical therapy. Finding all doubt in favor of the Veteran, the Board finds that these records indicate that the Veteran met the criteria for a second month of convalescence following the thoracic surgery. There is no record of the Veteran seeking medical treatment in May 2014. A review of the VA treatment records in June 2014 do not support the criteria for a total convalescent rating under 38 C.F.R. § 4.30. 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. Thus, even though the evidence suggests that the Veteran’s thoracic outlet syndrome surgery and convalescence did not fully resolve the underlying problems, there is no evidence that the Veteran had severe postoperative residuals, immobilization by cast, house confinement, or the necessity to use a wheelchair or crutches after April 30, 2014. The Board has reviewed the August 2014 private and VA medical records indicating increased disability beginning in July 2014. However, the Veteran no longer met the criteria for convalescence based on the February 2014 thoracic surgery under 38 C.F.R. § 4.30 prior to the increase in his disability in July 2014. Accordingly, the Veteran is not entitled to a temporary total rating based on convalescence subsequent to April 30, 2014, based on a worsening of his symptomatology in July 2014. Based on the above, the Board finds that the Veteran is entitled to a temporary total rating for two months, until April 30, 2014, based on a period of convalescence following February 2014 surgical treatment for thoracic outlet syndrome. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel