Citation Nr: 18158328 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-12 252 DATE: December 14, 2018 ORDER Entitlement to a temporary total evaluation based on the need for convalescence is denied. FINDING OF FACT The Veteran had surgery for his service connected foot disability on March 26, 2014 and required less than one month of convalescence. CONCLUSION OF LAW The criteria for a temporary total evaluation for convalescence for a service connected disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran had active military service from May 1985 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) from the October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at a January 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran contends that he is entitled to a temporary total evaluation for convalescence following his March 2014 foot surgery. Pursuant to 38 C.F.R. § 4.30, 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 (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. In order to attain the temporary total evaluation, the Veteran must demonstrate that his 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, the application of a body cast, a 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 (a). On March 26, 2014, the Veteran had a total/complete toenail avulsion with surgical matrixectomy due to an ingrown, infected, or damaged nail on the right foot. On March 31, 2014, the Veteran had a follow up appointment that noted that the Veteran was able to walk to his appointment. No complications were noted (the Veteran’s sutures were intact with no signs of dehiscence, mild edema and erythema were noted which correlates with normal post-operative changes, no purulence was noted, and no malodor was noted) and the Veteran was noted to return in one week. Subsequently, on April 8, 2014, the Veteran had a follow up appointment with the podiatry clinic. The treatment record states that the Veteran admitted to minimal pain and was able to ambulate to the clinic. Additionally, minimal edema and erythema were noted, which correlated to normal post-operative changes, the Veteran’s nail beds were healed on the less digits, and no purulence or malodor were noted. The treatment note also states that the Veteran only needed to return to the clinic if needed. A September 2014 VA treatment note states that the Veteran presented with painful feet, especially after standing for longer periods of time. However, the Veteran was able to walk to the clinic wearing regular shoes. Additionally, the Veteran’s muscle strength was noted to be normal and no gross deformities were noted. Additionally, a January 2015 private ankle and foot questionnaire was submitted. This questionnaire states that the Veteran experienced symptoms associated with his service connected foot disability, but does not demonstrate the need for convalescence resulting from the Veteran’s March 2014 surgery. The evidence of record does not contain any information demonstrating that the Veteran’s surgery necessitated at least one month of convalescence. While the Board is grateful for the Veteran's honorable service, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, entitlement to a temporary total evaluation for convalescence is not warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel