Citation Nr: 21003652 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-24 786 DATE: January 22, 2021 ORDER Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for February 7, 2013 left knee surgery is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. FINDING OF FACT The February 7, 2013 left knee outpatient surgery resulted in severe postoperative residuals. CONCLUSION OF LAW The criteria for a temporary total rating with respect to February 7, 2013 outpatient left knee surgery are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1987 to March 1995, with additional periods of service including Reserve and National Guard service. His decorations include the Parachutist Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and August 2016 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2019, the Veteran testified at a videoconference hearing before the undersigned. In May 2019, the Board reopened previously-denied claims seeking service connection for a left shoulder disability and a back disability; granted service connection for an acquired psychiatric disorder; and remanded the appeal as to the issues of entitlement to a temporary total rating for a left knee disability, entitlement to a total disability rating due to individual unemployability (TDIU), and entitlement to service connection for a disabilities of the left shoulder, low back, right hip, and left knee. In October 2020, the AOJ granted entitlement to service connection for a left shoulder disability, a left knee disability including a scar with a separate rating for instability, and a back disability with separate ratings for radiculopathy of the lower extremities. The AOJ also granted entitlement to a TDIU effective May 17, 2016, as well as other ancillary and downstream benefits. Thus, as the appeal as to these issues has been granted in full, these issues are no longer before the Board. If the Veteran disagrees with a determination by the AOJ, to include the effective date of any benefits sought or ratings assigned, he should seek review of that decision by filing the appropriate VA-promulgated form. 1. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for February 7, 2013 left knee surgery is granted. The Veteran asserts that a temporary total rating is warranted with respect to his February 7, 2013 outpatient left knee surgery. See January 2019 Hearing Transcript at 2. The Board agrees. While the Veteran’s claim states that he is seeking a rating under 38 C.F.R. § 4.29, see May 2016 VA Form 21-526EZ, the evidence does not show that a rating may be awarded under that section as the Veteran has not been hospitalized for a period of 21 days or more due to service-connected disability. However, the Board liberally construes this claim as seeking in the alternative a temporary total rating for convalescence as set forth in 38 C.F.R. § 4.30. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted based on the criteria being met. 38 C.F.R. § 4.30. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.30 if 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. Initially, the Board observes that while the claim for a temporary total rating was not filed until 2016, more than three years after the Veteran’s February 7, 2013 surgery, this benefit is not time-barred, because he was not then in receipt of service connection for a left knee disability. In October 2020, he was granted service connection for a left knee disability and assigned an effective date of service connection of December 14, 2012. Thus, the request for a temporary total rating is not untimely, as it is a downstream issue from the issue of service connection. Here, a February 7, 2013 postoperative report notes that following surgery at a VA medical center, the Veteran was discharged home on crutches, with Vicodin for pain control, and followup in two weeks. See February 7, 2013 Surgery Operative Note. Here, 38 C.F.R. § 4.30(a)(2) specifically identifies the requirement for continued use of crutches as a severe postoperative residual warranting a temporary total rating. Although the followup period noted on the discharge report is less than one month, subsection (a)(2) does not identify any minimum period of convalescence (as is required under subsection (a)(1)). Moreover, while the term “continued use” is not defined, this term is consistent with the Veteran being issued crutches to take home to adapt to his postoperative residuals, and the Board resolves any reasonable doubt in this regard in favor of the Veteran. Accordingly, as the criteria under 38 C.F.R. § 4.30(a)(2) are met, entitlement to a temporary total rating is granted. To avoid prejudice to the Veteran, the Board will allow the AOJ to assign an effective date and duration in the first instance. If the Veteran disagrees with the AOJ decision, he may file a request for review on the appropriate VA-promulgated form. REASONS FOR REMAND 2. Entitlement to service connection for a right hip disability is remanded. The Board regrets the delay, but additional development is necessary. In this regard, the October 2019 VA examiner’s opinion addresses whether the Veteran’s right hip disability is secondary to his right knee disability and notes that, among other things, the Veteran’s service connected “knee is ipsilateral to the hip, and [the] weigh bearing joint could produce problems through abnormal gait in CONTRALATERAL weight being joints, not IPSILATERAL” (capitalization as in original). See October 2019 VA Hip Medical Opinion. However, the Veteran is now in receipt of service connection for his left knee disability – the contralateral joint. Accordingly, an addendum opinion is necessary. To ensure the adequacy of the opinion, direct service connection should also be addressed. Complete VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure the Veteran’s complete VA treatment records. 2. Then obtain an addendum opinion addressing the nature and etiology of the Veteran’s right hip disability. The claims file should be made available to and should be reviewed by the examiner. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should respond to the following: Please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right hip disability: (a) had its onset in or is otherwise etiologically related to the Veteran’s active duty service; (b) is proximately due to the Veteran’s left knee disability, to include as a result of an altered gait.; or (c) is aggravated (worsened beyond its natural progression) by the Veteran’s left knee disability, to include as a result of an altered gait. Please provide a separate answer for each sub-part of this question for each right hip disability diagnosed. In addressing this question, the examiner should discuss the October 2019 examiner’s opinion that a weight-bearing joint could produce problems through abnormal gait in contralateral weight being joints. The examiner is advised that there is no requirement that a primary disability (here, left knee disability) be service-connected or even diagnosed at the time that the secondary disability (here, right hip disability) is diagnosed, and any opinion that relies on the secondary disability being diagnosed first will be returned as inadequate. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.