Citation Nr: 20051629 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 16-35 967A DATE: August 4, 2020 ORDER A temporary total disability rating extension from February 1, 2016, through March 31, 2016, for postoperative residuals necessitating convalescence due to right ankle surgery is granted. FINDINGS OF FACT 1. The Veteran was assigned a temporary total disability rating from December 22, 2015, through January 31, 2016, for convalescence following a right ankle surgery. 2. After removal of the postsurgical right ankle cast, the Veteran was directed to wear a controlled ankle motion (CAM) boot until the end of March 2016, which is comparable to the need to use crutches. CONCLUSION OF LAW The criteria for extension of a temporary total rating for convalescence following right ankle surgery, through March 31, 2016, but no further, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from August 1993 to August 1996. The Board remanded the issue in January 2019 for further development, including obtaining outstanding VA treatment records and contacting the Veteran to assist him with associating any other relevant records with the claims file. The Veteran was subsequently sent a letter in September 2019 requesting any relevant records. In December 2019, the Veteran submitted an authorization to disclose information to the VA on which he noted there were records at the Puget Sound VA Medical Center. Later that month, VA treatment records were associated with the record. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Temporary total rating extension. Temporary total disability ratings for convalescence are governed by 38 C.F.R. § 4.30. Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three 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. 38 C.F.R. § 4.30 (a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. Extensions of one or more months up to six months beyond the initial six-month period may be made for reasons (2) or (3) above. 38 C.F.R. § 4.30 (b). Pursuant to 38 C.F.R. § 4.30, the disability requiring treatment (hospitalization, convalescence, or immobilization) must be service-connected. Here, the Veteran is service-connected for right ankle lateral collateral ligament sprain and underwent a right ankle lateral stabilization procedure on December 22, 2015. In a February 2016 rating decision, he was granted a temporary total disability rating for the right ankle from December 22, 2015, through January 31, 2016. The Veteran asserts that he was told that he should receive a temporary total (100 percent) rating for 12 months following his right ankle surgery. He states that he was not working until January 31, 2016, worked only part time from February to May 2016, and partial duty but full time beginning in June 2016. See the April 2016 notice of disagreement, August 2016 in-lieu-of VA Form 9. The Board finds that an extension of the temporary total rating through March 31, 2016, is warranted. VA treatment records indicate that on January 5, 2016, the Veteran was given a controlled ankle motion (CAM) boot, which was to be nonweight-bearing at the time. On January 19, 2016, the Veteran was told to start weight-bearing in the CAM boot. In February 2016, the Veteran reported having no pain at the lateral ankle site. He was able to mobilize the ankle joint without too much difficulty or pain, and there was no tenderness to light palpation. Inversion eversion was still mildly limited after surgery and felt “tight.” The treating podiatrist indicated that the right ankle was stable and healing uneventfully. The Veteran was instructed to start weight-bearing with the CAM boot as tolerated. On April 7, 2016, the Veteran reported that since his last visit, he had been able to wear regular shoes and increased the range of motion in the ankle. He was doing weekly physical therapy and the treating podiatrist indicated that the Veteran ambulated in bilateral hiking shoes with a cane. On evaluation, there was no tenderness to light palpation of the lateral ankle, he could passively and actively dorsiflex and plantar flex the ankle without pain, and was able to perform full range of motion to the right ankle passively without pain. The Veteran was told to continue wearing supportive shoe gear and to continue with physical therapy as tolerated. He was also told to return in three months for a follow-up appointment. Subsequently, in June 2016, the Veteran was again noted to be status post right ankle stabilization procedure and progressing as expected. He was told to continue with supportive shoe gear. The Board notes that the use of a walking boot post-surgery is not explicitly considered by 38 C.F.R. § 4.30, which only discusses wheelchairs and crutches. Furthermore, the ankle is not a “major joint” as contemplated by VA rating criteria; however, after having reviewed all the relevant evidence of record, lay and medical, the Board finds that, in this particular case, the use of the CAM boot from the time the right ankle cast was removed until the end of March was comparable to the to the need to use crutches as contemplated by 38 C.F.R. § 4.30. (Continued on the next page)   For these reasons, the Board finds that the criteria are met for the extension of a temporary total disability rating under 38 C.F.R. § 4.30 for convalescence for post- operative residuals following right ankle surgery from February 1, 2016, through March 31, 2016. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has considered whether an extension beyond March 31, 2016, is warranted; however, review of the record reflects that, upon cessation of the use of the CAM boot, the Veteran did not have severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, 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. As such, continuation of the temporary total rating beyond March 31, 2016, is not warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.