Citation Nr: 18157377 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-35 335 DATE: December 13, 2018 ORDER Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) in excess of 70 percent is dismissed. Entitlement to an increased disability rating for residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of fifth finger in excess of 20 percent is dismissed. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for convalescence due to service-connected residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of fifth finger is denied. FINDINGS OF FACT 1. In December 2015, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an increased disability rating for PTSD in excess of 70 percent. 2. In December 2015, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an increased disability rating for residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of fifth finger in excess of 20 percent. 3. The record does not reflect that the Veteran underwent surgery necessitating at least one month of convalescence or 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). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for an increased disability rating for PTSD in excess of 70 percent have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the claim for an increased disability rating for residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of fifth finger in excess of 20 percent have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 3. The criteria for a temporary total rating for convalescence following surgery have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. Dismissals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. In a December 2015 correspondence, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of increased disability ratings for PTSD and residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of the fifth finger. In March 2016 and November 2018, the Veteran, through his representative, reaffirmed his explicit withdrawal of these issues. Accordingly, there remain no allegations of errors of fact or law for appellate consideration of these issues. The Board does not have jurisdiction to review these claims and the claims are dismissed. Temporary Total Evaluation A temporary total disability rating is for assignment without regard to other provisions of the rating schedule when it is established that treatment for a service-connected disability resulted in surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. A total rating will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; 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 immobilization by cast, without surgery, of one major joint or more. The Veteran seeks a temporary total disability rating for a May 2014 surgery involving service-connected residuals of shrapnel wound of the right middle, ring, and little fingers with amputation of fifth finger. Private medical records indicate that the Veteran underwent right ring finger rerouting of the ulnar conjoint lateral band on May 6, 2014. The Board finds that a temporary total evaluation is not warranted for the May 2014 surgery of the right ring finger. The preponderance of the evidence is against a finding the Veteran required at least one month of convalescence following this surgery; had severe postoperative residuals; or had casting, without surgery, of one of his major joints. In pertinent part, operative and postoperative records do not state that the Veteran required a period of convalescence. A May 2014 record noted a postoperative plan for the Veteran to follow-up in 2 days with occupational therapy to work on finger flexion for a period of 6 weeks. An undated prescription note from Dr. P.D. indicated that the postoperative plan was for the Veteran to wear a splint for 6 to 8 weeks and attend therapy for 12 weeks; there was no indication that the Veteran would require a period of convalescence after the operation. By 1 week postoperatively, the Veteran was noted to be able to actively flex the joint. It was noted that there was 20 degrees of flexion at the PIP joint and was actively flexing the PIP joint to 90 degrees. Additionally, a June 2014 VA record noted that the Veteran’s finger was in a cast, but there was no indication that the Veteran was on convalescence or presented with severe postoperative residuals such as incompletely healed surgical wounds or immobilization of a major joint. Based on the above, there is no basis on which to grant entitlement to a temporary 100 percent rating under 38 C.F.R. § 4.30 based on surgery necessitating at least one month of convalescence or with severe postoperative residuals as described in the regulation. The claim is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel