Citation Nr: 18157146
Decision Date: 12/13/18	Archive Date: 12/11/18

DOCKET NO. 16-51 165
DATE:	December 13, 2018
ORDER
The petition to reopen the claim of service connection for a bilateral hearing loss disability is granted.
Entitlement to a temporary total evaluation for convalescence is denied.
REMANDED
Service connection for a bilateral hearing loss disability is remanded.
FINDINGS OF FACT
1. In a June 2013 rating decision, the RO denied the claim of service connection for a bilateral hearing loss.  The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period.
2. Evidence received since the June 2013 decision relates to a previously unestablished fact necessary to substantiate the claim.
3. Convalescence from March 21, 2011 right knee surgery was less than a month in duration, and without complication or immobilization.  
CONCLUSIONS OF LAW
1. The June 2013 rating decision that denied service connection for a bilateral hearing loss disability is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2012).  
2. Evidence received since the June 2013 rating decision is new and material and the claim of service connection for a bilateral hearing loss disability is reopened.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2017).
3. The criteria for a temporary total evaluation based on convalescence for the March 21, 2011 right knee surgery have not been met. 38 U.S.C. §§ 1110, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1977 to December 1987.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
Additional evidence has been associated with the claims file since the last RO adjudication in January 2017.  This evidence is either duplicative of the evidence already of record, or it is not pertinent to the issues on appeal.  Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits.
Neither the Veteran nor his representative have 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 a duty to assist argument).
ANALYSIS
1. The petition to reopen the claim of service connection for bilateral hearing loss
Prior to the rating decision on appeal, the RO denied the Veteran’s claim of service connection for a bilateral hearing loss disability, most recently, in a June 2013 rating decision, finding that a VA examiner opined that a current hearing loss disability was less likely than not due to service.  The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision.  Therefore, the decision is final.  See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012).
The evidence received since the June 2013 rating decision includes evidence that is both new and material to the claim.  See 38 C.F.R. § 3.156 (2017).  For example, the Veteran testified in an October 2016 Decision Review Officer hearing that a civilian doctor he saw told him his hearing loss was likely as a result of military service.  This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim.  The credibility of this evidence is presumed for purposes of reopening the claim.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Accordingly, the claim is reopened and will be considered on the merits
2. Entitlement to a temporary total evaluation for convalescence. 
The Veteran contends that he is entitled to a temporary total disability rating for a period of convalescence following right knee surgery.  He initially claimed right knee surgery took place in March 2011.  In a later statement from his representative, the claim was made as to March 2013 knee surgery.
A total disability rating will be assigned effective from the date of a 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, if the hospital 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 (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30 (a) (2017). Extensions of one, two, or three months beyond the initial three months may be made under paragraph 38 C.F.R. § 4.30 (a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made under 38 C.F.R. § 4.30 (a)(2) or (3) upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b).
“Convalescence” is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland’s Illustrated Medical Dictionary, p. 374 (28th ed. 1994)). “Recovery” is defined as the act of regaining or returning toward a normal or healthy state. Id. (citing Webster’s Medical Desk Dictionary, p. 606 (1986)). The purpose of a temporary total convalescence evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. Notations in the medical record as to the claimant’s inability to work after surgery must be taken into account in the evaluation. 38 C.F.R. § 4.30; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430 (1998).
A review of VA treatment records did not show right knee surgery in March 2013, however, treatment records did show right knee surgery in March 2011.  Specifically, treatment records show a right knee arthroscopy and medial plica resection on March 21, 2011.  Discharge instructions after surgery showed restrictions for 72 hours.  Walking with crutches after 72 hours was permitted, using crutches as needed for balance and pain control.  An April 2011 treatment note showed the Veteran was ambulatory without external supports two weeks post-surgery.  He was permitted to return to work on April 11, 2011, which is less than one month of convalescence.  There was no evidence of severe post-operative complications or immobilization of the joint by a cast.  Accordingly, a temporary total evaluation for convalescence is not warranted.
REASONS FOR REMAND
1. Service connection for a bilateral hearing loss disability is remanded.
During an October 2016 Decision Review Officer hearing, the Veteran identified relevant outstanding private treatment records.  A remand is required to allow VA to obtain authorization and request these records.
The matters are REMANDED for the following action:
1. Ask the Veteran to complete a VA Form 21-4142 for private treatment records he identified in the October 2016 Decision Review Officer hearing, namely, that he saw a civilian doctor(s) about his hearing loss.  Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.
2. After completing these actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraph.
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3. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure.
 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Rocktashel, Counsel