Citation Nr: 1823629	
Decision Date: 04/20/18    Archive Date: 04/26/18

DOCKET NO.  14-29 014A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an extension of the temporary total disability rating from August 1, 2011, through September 30, 2011, for convalescence following the March 23, 2011, right wrist fusion surgery.

2.  Entitlement to an extension of the temporary total rating on and after October 1, 2011, for convalescence following the March 23, 2011, right wrist fusion surgery.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from February 1970 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The February 2012 rating decision denied extension of a temporary total evaluation beyond July 31, 2011.  A notice of disagreement was received in February 2013, a statement of the case was issued in June 2014, and a substantive appeal was received in August 2014.

The issue of entitlement to an extension of the temporary total rating on and after October 1, 2011, for convalescence following the March 23, 2011, right wrist fusion surgery is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran had postoperative residuals that required continued convalescence for at least six months following his March 2011 right wrist fusion surgery.


CONCLUSION OF LAW

The criteria for a temporary total disability rating up to September 30, 2011, based on the need for convalescence following the Veteran's right wrist fusion surgery on March 23, 2011, are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2011, the RO awarded a temporary 100 percent rating, effective from March 23, 2011 (the date of the Veteran's right wrist surgery) through May 31, 2011.  In June 2011, the RO awarded an extension of this temporary 100 percent rating through July 31, 2011.  The Veteran seeks an extension beyond July 31, 2011, for his total convalescent rating period under the provisions of 38 C.F.R § 4.30.

As will be discussed below, the Board has determined that the Veteran meets the basic eligibility requirements for an extension through September 30, 2011, of his VA convalescence benefits under the provisions of 38 C.F.R. § 4.30.

Under 38 C.F.R. § 4.30, a temporary total (100 percent) rating for convalescence will be assigned effective from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results 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, 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.  The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period.  An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30.

Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury."  Felden, 11 Vet. App. at 430 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)).  The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state."  Id. (citing WEBSTER'S MEDICAL DESK DICTIONARY 606 (1986)).  Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery.  Id.  Temporary total ratings for convalescence are payable from the date of entrance into the hospital, and are awarded after discharge.  38 C.F.R. § 3.401(h)(2).

The purpose of a temporary total rating is to aid the appellant 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.  38 C.F.R. § 4.30. 

In the case at hand, the extension of the temporary total rating through September 30, 2011, was deemed warranted by the RO because outpatient treatment records dated June 7, 2011, noted that the Veteran's right wrist had been recasted two weeks earlier and that follow-up care four weeks later had been directed.  

Evidence subsequent to that decision includes letters written by a VA physician assistant dated in July 2011, August 2011, October 2011, November 2011,
December 2011, March 2012, and June 2012 that note the Veteran will be on convalescence for an additional period, usually 6 weeks, and may be extended pending his progress on his next visit.  Records from this period also note plans including "light use" of the wrist.  

An August 2012 medical record from the Veteran's VA orthopedic surgeon notes that diagnostic imaging clearly reflects loose fixation screws, indicating failure of fusion at radiocarpal joint.  It was noted that removal of the prominent hardware and reattempt at fusion would be required, and it was recommended that the Veteran have a referral to a specialized fee basis hand surgeon.

In his February 2013 notice of disagreement, the Veteran notes, in pertinent part, that he was told for several visits following the removal of his cast in July 2011 that he cannot use the hand, as it had not healed.  He disputed the medical records indicating that he was not in pain.  He noted that "[t]he plate has separated and is protruding through the back of hand.  If I were to use my hand my fear would be that plate coming through the skin and requiring immediate surgery."  He stated that he "must have this right wrist fusion done soon as the wrist plate is almost completely detached from the screws.  This was ... necessitating convalescence as I am unable to use my hand and the surgical site never healed."

Based on the determination of the Veteran's treatment providers that he required continued convalescence, the indications that he was permitted no more than "light use" on and after August 1, 2011, and the determination that the Veteran's right wrist fusion ultimately failed and that refusion surgery from a specialist would be necessary, the Board will resolve reasonable doubt in the Veteran's favor grant an extension of his temporary 100 percent rating.  The Board finds that the Veteran's qualifying convalescent state persisted beyond July 31, 2011.  Additionally, the Board finds no persuasive basis for concluding that the Veteran's qualifying convalescent state concluded at any time prior to the passage of 6 months following the right wrist fusion surgery.

The Board is only authorized at this time to allow an extension of up to 3 months beyond the 3 month post-surgical period already awarded.  Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that an extension of the Veteran's convalescent period through September 30, 2011, is warranted.  38 C.F.R. § 3.102.

The award of this additional time brings the Veteran's total temporary rating for convalescence up to a full six months, the maximum period of time that can be granted without approval of the Veterans Service Center Manager under 38 C.F.R § 4.30.  As the evidence suggests that the post-surgery residuals persisted following September 30, 2011,  the matter of whether a convalescent rating is warranted from October 1, 2011, is considered in the remand, below.



ORDER

An extension of a temporary total disability rating based on convalescence following the March 23, 2011, right wrist fusion surgery is granted through September 30, 2011, subject to the laws and regulations governing monetary awards.


REMAND

The Veteran contends that a temporary total rating should be assigned until his release from Dr. Rothberg, the private orthopedic hand surgeon who was to perform his second right wrist fusion surgery.  (See February 2013 notice of disagreement.)

As noted above, pursuant to 38 C.F.R. § 4.30(b)(2), the question of whether the Veteran is entitled to an additional extension of his temporary total disability rating beyond the initial six-month period may not be addressed by the Board in the first instance.  Instead, an extension of one to six months beyond the initial six-month period may only be made upon approval of the Veterans Service Center Manager.  See 38 C.F.R. § 4.30(b)(2).  Accordingly, the AOJ should refer this matter to appropriate personnel for consideration of a convalescent rating beyond September 30, 2011, pursuant to 38 C.F.R. § 4.30(b)(2).  The AOJ should consider the Veteran's request for the assignment of such a rating for the entire period between his first and his second right wrist surgeries.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records from the period following the March 23, 2011, right wrist fusion surgery, to the present.  

2.  Ask the Veteran to fill out the appropriate authorization to allow VA to obtain any outstanding private medical records.  The Veteran should also be notified that he may submit these records himself.  After securing any necessary releases, request any identified records.  If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified.  

3.  The AOJ should forward the case to the appropriate personnel for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following the March 23, 2011, right wrist surgery under 38 C.F.R. § 4.30(b).

4.  After the development requested above has been completed, again review the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs