Citation Nr: 21000425 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-04 428 DATE: January 5, 2021 ORDER Entitlement to temporary total ratings under the provisions of 38 C.F.R. § 4.30 for a service-connected left knee disability based on convalescence following two surgical procedures in 2013 is denied. FINDING OF FACT The Veteran’s two surgical procedures in 2013 for a service-connected left knee disability did not require at least one month of convalescence following surgery and did not result in severe postoperative residuals, the need for house confinement, or the need for continued use of a wheelchair or crutches with regular weight-bearing prohibited. CONCLUSION OF LAW The criteria for temporary total ratings based on convalescence following two surgical procedures in 2013 for a service-connected left knee disability have not been met. 38 U.S.C. §§ 1155; 5110; 38 C.F.R. §§ 3.400, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2003 to May 2011. He served in Afghanistan and was awarded the Combat Infantryman Badge. The Veteran appeared at a March 2018 videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. This case was previously remanded in August 2018 and October 2019 for further development. In light of the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to temporary total ratings under the provisions of 38 C.F.R. § 4.30 for a service-connected left knee disability based on convalescence following two surgical procedures in 2013 A total disability rating of 100 percent will be assigned if treatment of a service-connected disability resulted in surgery necessitating: (1) 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)(1), (2), (3). Extensions of one, two or three months beyond the initial three months may be granted; extensions of one or more months up to six months beyond the initial six months period may be granted upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(1). The Veteran contends that he is entitled to an award of temporary total disability benefits based on left knee surgery necessitating convalescence under 38 C.F.R. § 4.30. According to the private medical evidence, the Veteran underwent an arthroscopic medial meniscal repair of the left knee on May 13, 2013. A VA treatment record dated May 29, 2013, shows that the Veteran was undergoing physical therapy. The Veteran was using crutches and wore a hinged knee brace. The Veteran was employed and was doing sedentary work. Private treatment records show that on October 18, 2013, the Veteran underwent arthroscopic lysis of adhesions and arthroscopic revision notchplasty of the left knee. In February 2014, the Veteran was prescribed 16 visits of physical therapy. The physical therapy consisted of range of motion exercises. The notes show that the Veteran’s weight-bearing status was “weight bearing as tolerated.” At a March 2018 Board hearing, the Veteran stated that he did physical therapy following the surgeries but that the range of motion was still not back to where it should have been. The Veteran had a custom knee brace. He stated that he used crutches frequently after the surgery, and he had used a cane to relieve some of the pressure off of the knee. He added that he used crutches for about two or three weeks after his surgeries. He also stated that he tried to not miss work. After review of the medical and lay evidence, the Board concludes that the preponderance of the evidence is against the assignment of a temporary total rating after either left knee surgery. As noted after the Veteran’s surgeries, the care providers did not advise him to remain in bed, stay homebound, or avoid bearing weight on the left leg. Specifically, the physical therapy notes show that the Veteran’s weight-bearing status was “weight bearing as tolerated.” Therefore, it cannot be said that regular weight-bearing was prohibited. There was no indication of infection at the incision sites or incompletely healed wounds after either surgery. The Veteran’s left leg was not therapeutically immobilized. Moreover, the evidence shows that the Veteran returned to employment within a couple of weeks following the surgery, as shown in a May 2013 VA treatment record. The Board has considered the lay evidence. The Veteran is competent to report experiencing swelling and pain of the left leg. Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge). However, he is not competent to determine whether his surgical treatment resulted in the need for convalescence as contemplated in 38 C.F.R. § 4.30 for an award of a temporary total rating. Contemporaneous medical records from 2013 and 2014 do not show that the Veteran met the criteria for a temporary total rating. Further, the Veteran has not asserted that either surgery necessitated continued use of crutches because regular weight-bearing was prohibited. Because of all the medical and lay evidence, the Board believes that the preponderance of the relevant evidence is against a finding that the Veteran met the criteria of 38 C.F.R. § 4.30. In short, the preponderance of the evidence is against a finding that the Veteran had residuals such as incompletely healed surgical wounds, therapeutic immobilization of a major joint, application or the equivalent of a body cast, the need for house confinement, or the need for the continued use of a wheelchair or crutches with regular weight-bearing prohibited due to either surgery. 38 C.F.R. § 4.30. While the Veteran believes that the severity of the postoperative residuals merits the assignment of a temporary total rating, the contemporaneous evidence shows that he did not require convalescence as it is defined under 38 C.F.R. § 4.30. Accordingly, the Board finds that the preponderance of the evidence is against the awarding of temporary total ratings under the provisions of 38 C.F.R. § 4.30 for a service-connected left knee disability based on convalescence following two surgical procedures in 2013, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.