Citation Nr: 21062766 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-29 480 DATE: October 12, 2021 ORDER Entitlement to two temporary total evaluations under 38 C.F.R. § 4.30 from (1) July 8, 2015 through January 28, 2016 and (2) January 28, 2016 through March 25, 2016 is granted. FINDING OF FACT The evidence shows that the Veteran's two right knee surgeries during the period on appeal resulted in severe postoperative residuals from (1) July 8, 2015 through January 28, 2016 and (2) January 28, 2016 through March 25, 2016. CONCLUSION OF LAW The criteria for entitlement to two temporary total evaluations from (1) July 8, 2015 through January 28, 2016 and (2) January 28, 2016 through March 25, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1987 to December 1987 and October 1991 to December 1995. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran's claim for an extension of a temporary total evaluation following surgery on her right knee. The Board remanded the Veteran's claim for increased ratings for right knee scarring for additional evidentiary development. The Board remanded the Veteran's claim for increased schedular ratings for the right knee based on instability and limitation of motion with instructions for the Agency of Original Jurisdiction (AOJ) to issue a Statement of the Case. On remand, the AOJ issued an April 2020 Statement of the Case regarding the right knee disability ratings based on limitation of motion and instability. The Veteran did not file a substantive appeal to the Board. She instead chose to opt-in to the Modernized Review System and elected to continue with a Supplemental Claim at the RO. See June 2020 Decision Review Request: Supplemental Claim; 38 C.F.R. §§ 3.2400, 3.2501 The RO issued a September 2021 rating decision on the issue, and the Board has not received a Notice of Disagreement regarding the issue. Therefore, the Board finds the issue of schedular ratings based on limitation of motion and instability is not on appeal before the Board at this time. Similarly, the Board finds the issue of increased ratings for scarring is also not on appeal because the Veteran chose to opt-in to the Modernized Review System for a Higher-Level Review from the September 2020 Supplemental Statement of the Case on the issue. See October 2020 Decision Review Request: Higher-Level Review; 38 C.F.R. §§ 3.2400, 3.2601. The RO addressed the right knee scarring in a February 2021 rating decision, and the Board has not received a Notice of Disagreement with the decision to date. Therefore, the Board finds the issue of increased ratings for scarring of the right knee is not on appeal before the Board at this time. The Veteran appealed the Board's denial of her claim for an extension of the temporary total evaluation to the United States Court of Appeals for Veterans Claims (CAVC). In March 2020, the CAVC vacated the portion of the Board decision denying the extension of the temporary total evaluation and remanded the matter to the Board for action consistent with a Joint Motion for Partial Remand (JMPR). The JMPR notes that in light of section 4.30(a)(2)'s provisions authorizing the award of a total temporary evaluation for severe postoperative residuals, such as therapeutic immobilization of a major joint or for prohibition against weight-bearing, the Board should provide an adequate statement of reasons or bases that addresses whether the Veteran's use of a walker, cane, and neoprene sleeve would qualify as severe postoperative residuals under 38 C.F.R. § 4.30(a)(2). The Veteran's representative indicated that the Veteran seeks two temporary total evaluations under 38 C.F.R. § 4.30 from (1) July 8, 2015 through January 28, 2016 and (2) January 28, 2016 through March 25, 2016. See, e.g., September 2016 Notice of Disagreement. Upon reconsideration of the evidence and the provisions of 38 C.F.R. § 4.30(a)(2), the Board finds the evidence supports awarding the two temporary total evaluations the Veteran seeks on appeal. The Board notes that the evidence shows that while the Veteran returned to work and began to limit her use of assistive devices, the increased activity levels and reduced reliance on assistive devices were severely detrimental to her recovery. See May 2016 Disability Benefits Questionnaire from S.S., MD.; March 2016 Statement in Support of Claim. Her doctors indicated they advised her to limit her activity levels and use assistive devices for a longer duration of time. See, e.g., December 2015 Orthopaedic Clinic Note from S.S., MD. As the Veteran attempted to limit her convalescence, the pertinent treatment records indicate that her postoperative residuals worsened and conservative management failed, which necessitated an additional surgery on January 28, 2016. See January 28, 2016 Admission Note from M.U.H. The Board finds the Veteran's disability picture from the time of her discharge from the hospital for her first surgery on July 8, 2015 through the second surgery on January 28, 2016 is consistent with the severe postoperative residuals contemplated by 38 C.F.R. § 4.30(a)(2). Therefore, the Board finds an extension of the temporary total evaluation following the July 2015 surgery is warranted through the date of the second surgery, and the Board will also consider assigning an additional temporary total evaluation following the January 2016 surgery. The Board finds that competent and credible medical opinion evidence also indicates that that the Veteran suffered from additional severe postoperative residuals from the second surgery through March 25, 2016 consistent with the contentions of the Veteran's attorney. This evidence includes medical opinions from the Veteran's treatment providers, who indicated she had to reduce her activity levels substantially through March 25, 2016 and rely on assistive devices until she was eventually able to discontinue their use. See June 2016 letter from S.S., MD; May 2016 Disability Benefits Questionnaire from S.S., MD. The Board finds no competent and credible evidence contrary to the opinions from the Veteran's treatment providers. Accordingly, entitlement to two temporary total evaluations under 38 C.F.R. § 4.30 from (1) July 8, 2015 through January 28, 2016 and (2) January 28, 2016 through March 25, 2016 is granted. The Board finds this is a full grant of the benefits the Veteran seeks on appeal. See, e.g., September 2016 Notice of Disagreement. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.