Citation Nr: 20021599 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-42 274 DATE: March 26, 2020 ORDER A temporary total rating based on a period of post-surgical convalescence for the right elbow is denied. FINDINGS OF FACT 1. The Veteran had active service from January 1980 to February 1983. 2. The Veteran did not require a period of convalescence following his January 2017 right elbow procedures. CONCLUSION OF LAW The criteria for a temporary total rating for a right elbow disorder based on a period of post-surgical convalescence have not been met. 38 U.S.C. §§ 1155, 5017 (2012); 38 C.F.R. § 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, in connection with this appeal the Veteran testified at a February 2020 hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Additionally, the Veteran argued in his February 2020 hearing that a claim of service connection for ulnar neuropathy of the right elbow was properly before the Board. A review of the record reveals that claims of service connection for right elbow ulnar neuropathy and a temporary total rating for convalescence from right elbow surgery were denied in a May 2017 rating decision. However, while he timely disagreed with the decision, he failed to appeal the denial of service connection for right elbow ulnar neuropathy. Accordingly, the May 2017 rating decision is final as to the service connection claim and the claim is not properly before the Board at this time. The evidence further reveals that an application to reopen the claim of service connection for right elbow ulnar neuropathy was raised by the record in August 2018 and February 2020 statements submitted by the Veteran, but has not been separately adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to decide this issue and it is referred to the AOJ for appropriate action. A total disability rating of 100 percent may be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or approved hospital for a period in excess of 21 consecutive days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 consecutive days. 38 C.F.R. § 4.29. The Veteran reported that following his right elbow procedure, he spent no more than an overnight in the hospital. Accordingly, he did not spend 21 consecutive days of hospital observation for the disorder and a total disability rating is not warranted for hospital treatment or observation of his right elbow disorder under 38 C.F.R. § 4.29. A total disability rating of 100 percent may be assigned when it is established by report or hospital discharge or outpatient release that entitlement is warranted, if treatment of a 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 or more major joints, a body cast, the necessity of home confinement, or the necessity of crutches or a wheelchair; or (3) there is immobilization by cast, though no surgery, of one or more major joints. 38 C.F.R. § 4.30. The Court has defined convalescence 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 415 (30th ed., 2003)). The court defined recovery as “the act of regaining or returning toward a normal or healthy state.” (citing Webster’s Medical Desk Dictionary 606 (1986)). The Court has noted that the term “convalescence” does not necessarily entail in-home recovery. 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). In a February 2020 hearing before the Board, the Veteran testified that he underwent convalescence following his right elbow surgery for a period of at least three months that included physical therapy, exercises, and check-ins with his clinicians. He is competent to report events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, convalescence must be established by medical evidence, to include reports at hospital discharge or outpatient release. 38 C.F.R. § 4.30. The medical records fail to establish that the Veteran’s right elbow surgery necessitated at least one month of convalescence. In this regard, the records reflect that he underwent both an initial right elbow surgery and a follow-up procedure in January 2017. However, a February 2017 treatment note documented that he rescheduled a follow-up appointment, explaining that he was doing well and had no issues or concerns. While the medical records document that he has received physical or occupational therapy for various ailments, they do not note therapy to treat his right elbow ulnar neuropathy outside of a single May 2017 appointment at which he was taught ulnar gliding exercises. Based on the above, a temporary total rating for a period of post-surgical convalescence for the right elbow is not warranted. In this regard, the medical evidence fails to establish that he required convalescence following his January 2017 right elbow surgery. Accordingly, the medical evidence does not support a temporary total rating based on a period of post-surgical convalescence for the right elbow. The Board acknowledges that it has referred an application to reopen a claim of service connection for right elbow ulnar neuropathy to the AOJ. Furthermore, the Veteran has asserted that his surgery ultimately stemmed from his right elbow ulnar neuropathy. However, as discussed above, the medical evidence of record does not establish that the Veteran’s surgery required at least one month of convalescence. Accordingly, even if the ulnar neuropathy was service connected, the analysis would not change. The Board has considered statements and testimony submitted by the Veteran with regards to his eligibility for a temporary total rating. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of treatment sufficient to satisfy the requirements of 38 C.F.R. § 4.30. Such competent evidence concerning the nature and extent of the treatment provided following the Veteran’s right elbow surgery has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the medical treatment notes and other clinical evidence) directly address the criteria under which entitlement to a temporary total rating under 38 C.F.R. § 4.30 is evaluated. Moreover, as the clinicians have the requisite medical expertise to render medical opinions regarding the extent of treatment required following the Veteran’s right elbow surgery and had sufficient facts and data on which to base their conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of convalescence, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.