Citation Nr: 18160197 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-00 352 DATE: December 26, 2018 ORDER Entitlement to a temporary total disability rating based on convalescence is denied. FINDING OF FACT The Veteran did not undergo surgery for his left ankle that required at least one month of convalescence, or underwent 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 experienced immobilization by cast, without surgery, of one major joint or more. CONCLUSION OF LAW The criteria for a temporary total disability rating based on convalescence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 2002 to June 2002 and from June 2002 to September 2006. The Veteran declined a hearing in this case. Entitlement to a temporary total disability rating based on convalescence A total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted, 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. Such total rating will be followed by appropriate schedular evaluations. Id. Total ratings are 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. Id. The Veteran was afforded an orthopedic consultation in April 2015, wherein the examiner noted that the Veteran had sustained an ankle injury and that there were no fractures in the Veteran’s ankle. The examiner explained that the Veteran could actively flex and extend his ankle. The examiner further noted that the Veteran was permitted to bear weight on his left ankle while wearing the boot. In a May 2015 letter from the Veteran’s physician, he wrote that the Veteran was required to wear a cam boot daily and should remain on light duty until he returned for his follow-up visit. The Veteran was also afforded an orthopedic visit later in May 2015 wherein the medical professional noted that the Veteran was wearing the boot most of the time and could continue weight bearing as he is able to tolerate it while wearing the boot. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to a temporary total disability rating based on convalescence, as the Veteran’s circumstances do not meet the criteria for entitlement to a temporary total rating based on convalescence. For example, the Veteran did not undergo surgery for his left ankle that required at least one month of convalescence, or underwent 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 experienced immobilization by cast, without surgery, of one major joint or more. The Board acknowledges the Veteran’s assertion on his December 2016 VA Form 9, Appeal to the Board, that the provisions of 38 C.F.R. § 4.30 do not specifically list absence from work as a requirement for convalescence. The denial of entitlement to a temporary total rating is not based upon the Veteran’s absence from work. Rather, the Board finds that the Veteran does not meet the specific requirements of 38 C.F.R. § 4.30 because the record does not show that he underwent surgery or had immobilization by cast of a major joint. The Veteran does not contend, and the record does not show, that he underwent surgery on his left ankle. The Board acknowledges the Veteran’s May 2015 assertion that his joint was immobilized during his use of a cam boot. However, his left ankle was not immobilized because an April 2015 orthopedic consultation note shows that he could actively flex and extend his left ankle during the time that he was prescribed to wear the boot, was permitted to bear weight on that ankle while wearing the boot, and was prescribed light flexibility exercises to perform while bathing. This shows that the Veteran’s ankle was not immobilized, as it would have been if a cast were prescribed. The Board also acknowledges the Veteran’s June 2016 submission that weight bearing was prohibited after his injury. In this regard, the Board notes that the Veteran has submitted an April 2015 hospital handout that states “Unless you were told otherwise, use crutches or a walker and do not bear weight on the injured leg until cleared by your doctor to do so.” However, in an April 2015 orthopedic consultation, the Veteran was specifically instructed that he was permitted to bear weight on his left ankle while wearing the boot. Thus, the Veteran’s allegation that he was prohibited from weight bearing is not supported by the contemporaneous records, which the Board finds are more credible than the Veteran’s allegation. Finally, the Board acknowledges that the Veteran’s April 2015 medical treatment records show that he was fitted with crutches. However, the provisions of 38 C.F.R. § 4.30 state that entitlement to convalescence for the continued use of crutches applies only after surgery, and only when regular weight-bearing is prohibited. In this case, the Veteran did not have surgery on his left ankle, and was permitted to bear weight on his left ankle so long as he wore the prescribed boot. Significantly, there is no probative evidence that the Veteran required surgery that resulted in convalescence of at least one month, that the Veteran had surgery with severe postoperative surgical 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 that the Veteran had immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30. For all these reasons, the preponderance of evidence weighs against the Veteran’s claim of entitlement to a temporary total disability rating based on convalescence. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107.   A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel