Citation Nr: 21008080 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-29 337 DATE: February 11, 2021 ORDER An extension of a temporary total rating (TTR) for convalescence following surgery for right knee instability under 38 C.F.R. § 4.30 from February 1, 2019, to May 1, 2019, is granted. FINDINGS OF FACT 1. The Veteran served on active duty from September 2000 to December 2004. 2. From February 1, 2019, to May 1, 2019, the Veteran experienced delayed healing due to right knee surgery that required additional convalescence. CONCLUSION OF LAW The criteria for an extension of a TTR for convalescent following surgery for right knee instability, for the period from February 1, 2019 to May 1, 2019, are met. 38 C.F.R. §§ 3.102, 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an extension of a TTR granted for convalescence purposes under 38 C.F.R. § 4.30, beyond February 1, 2019, following October 2018 surgery for his service-connected right knee instability. The applicable regulation provides that a total disability rating (100 percent) will be assigned for convalescence 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 receive a TTR, a service-connected disability must result 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). Additionally, 38 C.F.R. § 4.30 further authorizes extensions of the TTR when supported by the record in increments of 1, 2, or 3 months beyond the initial 3 months granted. 38 C.F.R. § 4.30(b)(1). The maximum extension is as many as 6 months beyond the initial 6 months (12 months total) only upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). The Court has held that notations in the medical record as to a veteran’s incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291, 296- 297 (1995). Further, the term “convalescence” does not necessarily entail in-home recovery. In this case, the Veteran has submitted VA treatment records with attached letters from VA providers which show that in February 2019, he was experiencing delayed healing. Dr. J.O. noted that the Veteran had an anteromedial tibial tubercle osteotomy in October 2018 and that he was continuing to be seen in their clinic, and beginning physical therapy. In February 2019, Dr. J.O. wrote that the Veteran was seen in the emergency room for a fractured tibia/reinjury of post-operation tibial tubercle osteotomy/MPFL reconstruction as well as a suspected torn medial collateral ligament (MCL). Dr. J.O. noted that the Veteran would require bedrest, as well as crutches and braces for 6-9 weeks. Later, in April 2019, Dr. J.O. noted that the Veteran was still experiencing delayed healing from his October 2018 surgery. He was noted to be unable to work until at least his next follow up appointment which was to be on June 25, 2019. In August 2019, Dr. D.P. reported that the Veteran continue to have post-operative right lower extremity complications which were related to his service-connected right knee instability. Dr. D.P. noted that the Veteran’s orthopedic care was going to be re-evaluated in approximately three months, although a full recovery was not expected at that time. An October 2019 letter showed he was delayed in his progress once more until at least November 2019. At that time, his medical records showed that he underwent another right knee surgery. Based on the above, an extension of the TTR to May 1, 2019, is warranted in accordance with 38 C.F.R. § 4.30(a)(1), which provides for the assignment of a TTR when treatment of a service-connected disability results in surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence. While the Veteran’s recovery spanned well past the permitted three month extension under 38 C.F.R. § 4.30, this decision reflects a full grant of the benefits which are permitted under law. Any extension longer than the permitted three months, per statute, would require approval by the Veterans Service Center Manager, which has not been obtained in this case. Further, the Veteran underwent another knee surgery in November 2019 as noted in his treatment records; however, the Board does not have jurisdiction to address any new requests for a TTR at this juncture. Thus, an additional three months of convalescent is granted from February 1, 2019, to May 1, 2019. To this extent, the appeal is granted. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.