Citation Nr: 21004447 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-18 887 DATE: January 27, 2021 ORDER An extension of a temporary total rating for convalescence following right foot surgery, from November 1, 2016 to December 31, 2016, is granted. An extension of a temporary total rating for convalescence following right foot surgery, from January 1, 2017 to February 1, 2017, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence suggests the Veteran’s August 2016 right foot surgery necessitated convalescence until December 31, 2016. 2. The preponderance of the evidence is against a finding that the Veteran’s August 2016 right foot surgery required convalescence after January 1, 2017. CONCLUSIONS OF LAW 1. The criteria for an extended temporary total evaluation based on convalescence due to right foot surgery from November 1, 2016 to December 31, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 2. The criteria for an extended temporary total evaluation based on convalescence due to right foot surgery from January 1, 2017 to February 1, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from April 2006 to August 2007. In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. On August 23, 2016, the Veteran underwent a surgical excision of a plantar fibroma to treat her service-connected right foot plantar fasciitis. Pursuant to 38 C.F.R. § 4.30, the Veteran was awarded a temporary total disability rating (100 percent) due to post-surgical convalesce for the period from August 23, 2016 to November 1, 2016. In written correspondence and at the November 2020 hearing, the Veteran requested that the temporary total rating be extended until February 1, 2017. Therefore, the period on appeal in this matter is from November 1, 2016 to February 1, 2017. For the reasons discussed below, the Board has determined that an extension of the temporary total is warranted until December 31, 2017, but not after that date. For clarity, the Board has divided the claim into a separate issue for each of these periods. 1. An extension of a temporary total rating for convalescence following right foot surgery from November 1, 2016 to December 31, 2016 2. An extension of a temporary total rating for convalescence following right foot surgery from January 1, 2017 to February 1, 2017 The Veteran is in receipt of a temporary total disability rating from August 23, 2016 to November 1, 2016. The Veteran contends that the recovery from her August 2016 right foot surgery warrants extending the assignment of a temporary total rating from November 1, 2016 to February 1, 2017. Legal Criteria 38 C.F.R. § 4.30 sets forth provisions governing convalescent ratings. It provides that 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, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. In order to attain the temporary total disability rating, the Veteran must demonstrate that her 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 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). 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 request. 38 C.F.R. § 4.30(b). November 1, 2016 to December 31, 2016 The Veteran has submitted records from a private physical therapist which date from October 11, 2016 to December 14, 2016. These records document monthly physical therapy visits and show gradual improvement. The records note the Veteran’s progress toward short and long-term goals as part of her recovery. As of November 18, 2016, the goals of having a home exercise program (HEP) and walking with an appropriate assistive device were “met.” The goals of walking with a cane, or without an assistive device for short community distances and minimal antalgia, and the goal of having pain less than 5 out 10 were marked as “progressing.” As of December 14, 2016, all of these goals were marked as “met.” The December 2016 physical therapy records note that the Veteran was walking and moving around. Although the Veteran had progressed well with her foot function, she still suffered from pain, weakness, and stiffness. The Veteran was discharged from physical therapy at that time. The record shows that, during the months of November and December 2016, the Veteran was still walking with an assistive device and experiencing pain at a level greater than 5 out of 10. These physical therapy records constitute probative evidence that the Veteran experienced severe post-operative residuals including pain and the need for an assistive walking device. Resolving reasonable doubt in the Veteran’s favor, the Board retroactively awards the Veteran an extended period of convalescence under 38 C.F.R. § 4.30 from November 1, 2016 to December 31, 2016. January 1, 2017 to February 1, 2017 As discussed above, the Veteran’s post-surgical physical therapy was completed in December 2016 with all goals met. After her physical therapy was completed, there was no additional treatment related to recovery from her right foot surgery. The records during this period include a photograph of the Veteran’s foot dated January 19, 2017, which shows a healed surgical scar. On January 30, 2017, the Veteran underwent right knee replacement. In February 2017, the Veteran presented to her VA podiatrist for a six-month post-operative visit. The Veteran reported that her right foot is doing well, though she gets a little swelling at night. An examination of the Veteran’s foot found no signs of recurrence or new fibromas, and no pain on palpation to the plantar foot. During the November 2020 hearing, the Veteran contended that she is entitled to an extension of the temporary total period until the date of her knee surgery, January 30, 2017, because that surgery was delayed due to her right foot recovery. However, the criteria used by medical doctors to schedule the date for surgery are a separate matter from the criteria for an extended temporary total rating. The requirements for an extended temporary total rating are prescribed by law under 38 C.F.R. § 4.30. These requirements discuss post-operative residuals and functional limitations, but do not mention the need to delay any other surgeries. The Board assigns great probative weight to the fact that the Veteran’s physical therapy was completed in December 2016, and that the record is silent for any follow-up treatment in January 2017. Upon discharge from her private physical therapy, the Veteran was instructed to call if any problems arose. However, the record is silent for any contact with her physical therapist after December 2016. This evidence supports a finding that the Veteran’s convalescence did not extend beyond December 2016. The evidence after December 2016 does not show that the Veteran had incompletely healed surgical wounds, therapeutic immobilization of the foot, necessity for house confinement, or that her foot was in a cast. From January 1, 2017 to February 1, 2017, the Veteran was in receipt of a 20 percent rating for her right foot disability under Diagnostic Code 5276, which contemplates pain on manipulation and swelling. 38 C.F.R. § 4.71a, DC 5276. The symptoms the Veteran was experiencing during this period are fully contemplated by this rating. For all the foregoing reasons, the Board finds that the termination of the temporary total rating for convalescence following right foot surgery is appropriate as of January 1, 2017, and an extension of such rating is not warranted beyond that date. (Continued on next page) Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for a temporary total rating after January 1, 2017, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey 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.