Citation Nr: 21010723 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-29 706 DATE: February 25, 2021 ORDER Entitlement to an extension of a temporary total evaluation through April 30, 2015, based on the need for convalescence following surgery associated with a service-connected left ankle disability on October 29, 2014, is granted. REMANDED Entitlement to an increased evaluation for service-connected residuals of a left tibial fracture with posttraumatic arthritis and leg length discrepancy, status post left ankle fusion, (hereinafter service-connected left ankle disability), currently evaluated 10 percent disabling prior to October 29, 2014, and from May 1, 2015, to September 30, 2015, and 20 percent disabling from October 1, 2015, to the present, is remanded. Entitlement to an extension of a temporary total evaluation beyond April 30, 2015, based on the need for convalescence following surgery associated with a service-connected left ankle disability on October 29, 2014, is remanded. FINDING OF FACT The Veteran’s left ankle fusion surgery performed on October 29, 2014, required convalescence for a period of at least six months. CONCLUSION OF LAW The criteria for the assignment of a temporary total rating through April 30, 2015, based on the need for convalescence following the Veteran's surgery associated with a service-connected left ankle disability on October 29, 2014, 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 on active duty in the United States Navy from October 2000 to January 2010. This matter comes to the Board of Veterans' Appeals (Board) from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In August 2020, the Veteran presented oral testimony in support of his appeal at a board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. In an April 2016 rating decision and an April 2017 Decision Review Officer (DRO) decision, the AOJ partially granted the Veteran’s appeal seeking an extension of the temporary total evaluation based on the need for convalescence following surgery associated with a service-connected left ankle disability. As neither award was a full allowance of the benefits sought on appeal, the issue remains in appellate status and has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). Clarification of the appeal period for consideration The Board observes that the issues on appeal were adjudicated by the AOJ in rating decisions dated in October 2014, February 2015, June 2015, and April 2016, based on the AOJ’s receipt of pertinent new and material evidence with the appeal periods of those decision, and the Veteran’s requests for reconsideration of such. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). As such, the May 2016 rating decision subsumed those prior rating decisions, and the present appeal stems from the Veteran’s initial claim for an increased evaluation, which was received by the AOJ on January 27, 2014. Accordingly, the appeal period for consideration in this case is from January 27, 2013, to the present, which includes the on-year “look back” period under Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). 1. Entitlement to an extension of a temporary total evaluation to April 30, 2015, based on the need for convalescence following surgery associated with a service-connected left ankle disability on October 29, 2014, is granted. A temporary total disability rating of 100 percent will be assigned from the date of hospital admission and continue for a period of one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative rituals, 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 one, two, or three months of a temporary total disability rating may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b)(1). Extensions of one to six months beyond the initial six-month temporary total disability rating may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). "Convalescence" is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (defining "recovery" as "the act of regaining or returning toward a normal or healthy state"). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. Notations in the medical record as to the claimant's incapacity to work after surgery must be taken into account in the evaluation. Id.; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430. Analysis The Veteran claims entitlement to an extension of a temporary total rating based on convalescence due to left ankle fusion surgery on October 29, 2014. Throughout the pendency of the appeal, to include at the August 2020 hearing, the Veteran asserted that such an extension is warranted based on his physician’s order that he not return to work until July 2015. For the reasons stated below, the Board concludes that the evidence supports the Veteran’s assertions; however, the Board is unable to grant the totality of the benefits sought at this time due to procedural considerations. The Veteran underwent left ankle fusion surgery on October 29, 2014. In the February 2015 rating decision, a temporary total evaluation based on surgery necessitating convalescence was assigned to the Veteran's left ankle from October 29, 2014, the date of the surgery, to November 30, 2014. Following the period of convalescence, a 10 percent disability evaluation was assigned, effective December 1, 2014. As noted in the Introduction, this 100 percent evaluation was extended to January 2015, by an April 2016 rating decision and to April 1, 2015, by the April 2017 DRO decision. As noted, temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following the treatment that led to convalescence. Here, the surgery occurred on October 29, 2014. Thus, starting the first day of the following month, the Veteran is in receipt of a temporary total evaluation based for five months, and he is seeking an extension until, at least, July 2015. 38 C.F.R. § 4.30(a)(1). The Veteran’s VA treatment records reflect that he participated in extensive physical therapy after the October 2014 surgery, and throughout such, he reported increased pain, weakness, and swelling in the fused joint, resulting in increased difficulty walking and an inability to ascend or descend stairs. Based on these post-surgery residuals, the Veteran’s VA physician ordered that the Veteran not return to his occupation as a private investigator until July 6, 2015 – an order that the Veteran heeded. Moreover, the Veteran subsequently testified at the August 2020 Board hearing that upon return to his occupation in July 2015, he was not able to fully participate in all aspects of his job, especially any activity causing his to be standing, walking, and/or running, and his employer made various accommodations to allow him to return. The Board observes that while the rehabilitation records and other medical evidence do not show that the Veteran was bed-ridden or wholly unable to walk without crutches or assistive devices after April 1, 2015, his incapacity to work after surgery must be taken into account. The Board finds that the evidence is at least in equipoise and shows that the Veteran's October 2014 left ankle fusion surgery necessitated at least six months of convalescence following surgery, which results in an extension of the temporary total evaluation to April 30, 2015. 38 C.F.R. § 4.30(a), (b)(1); see Seals, 8 Vet. App. at 296-97; Felden, 11 Vet. App. at 430. As stated above, requests for further extensions of one or more months, to as many as six months, past the allowed six months under the Rating Schedule, must be approved by the Veterans Service Center Manager, and therefore, cannot be adjudicated by the Board at this time. 38 C.F.R. § 4.30(b)(2). Accordingly, the Veteran's request for a further extension of a temporary total rating based on convalescence is addressed in the remand portion of this decision. REASONS FOR REMAND 1. Entitlement to an increased evaluation for a service-connected left ankle disability, currently evaluated 10 percent disabling prior to October 29, 2014, and from May 1, 2015, to September 30, 2015, and 20 percent disabling from October 1, 2015, to the present, is remanded. At the August 2020 Board hearing, the Veteran asserted that the symptoms associated with his service-connected left ankle disability have increased in severity since the most recent VA examination was completed in January 2016 – more than five years ago. Moreover, the Veteran’s testimony reflects that he also experiences muscular and neurology symptoms secondary to this service-connected disability and resulting surgery. Specifically, he testified that the muscles in his lower left leg have atrophied in recent years, and he experiences tingling in his left calf, ankle, and foot. Based on the above, the Board concludes that a remand is necessary in order to provide the Veteran appropriate VA examinations to determine the current orthopedic, muscular, and neurologic, manifestations of his service-connected left ankle disability. 2. Entitlement to an extension of a temporary total evaluation beyond April 30, 2015, based on the need for convalescence following surgery associated with a service-connected left ankle disability on October 29, 2014, is remanded. While the Board has granted the extension of temporary total rating based on convalescence following left ankle fusion surgery, from October 29, 2014, to April 30, 2015, this does not represent the maximum extension time period available. As such, this issue remains in appellate status, particularly where, as here, the Veteran has asserted he was entitled to a temporary total evaluation until at least July 2015. Pursuant to 38 C.F.R. § 4.30(b)(2), the question of whether the Veteran is entitled to an additional extension of her temporary total disability rating beyond the initial six-month period may not be addressed by the Board in the first instance. Instead, an extension of one to six months beyond the initial six-month period may only be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). This must be completed on remand The matters are REMANDED for the following actions: 1. The AOJ, with the Veteran’s assistance, must identify and obtain an outstanding VA and private treatment records pertinent to the issues remanded by the Board. 2. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to determine the nature, frequency, severity, and resulting functional impairment of all manifestations of his service-connected left ankle disability. The Veteran’s complete VA file must be made available to, and review by, the VA examiner(s) prior to the examination(s). Thereafter, the examiner(s) are requested to address the following: a. Is the Veteran’s left ankle ankylosed? If so, please state the degree of plantar flexion or dorsiflexion in which the joint is fixed. b. If the left ankle is not ankylosed, provide range of motion findings for the Veteran’s left ankle, to include on passive and active motion, in weight-bearing and nonweight-bearing positions, and during flare-ups. c. Please identify any muscle disability which is associated with the Veteran’s service-connected left ankle disability. *In addressing the above, the examiner is asked to identify any muscle of the left lower leg, ankle, or foot that is atrophied or otherwise negatively impacted by the Veteran’s service-connected left ankle disability. d. For any muscle disability identified in part (c), the examiner is additionally asked to provide statements concerning loss of deep fascia, muscle substance, or the normal firm resistance of muscles compared with sound side. e. Please identify any neurologic disability which is associated with the Veteran’s service-connected left ankle disability. *In addressing the above, the examiner is specifically asked to identify any nerve of the left lower leg, ankle, or foot that is atrophied or otherwise negatively impacted by the Veteran’s service-connected left ankle disability. f. For any neurologic disability identified in part (e), the examiner is asked to provide statements concerning the degree of paralysis (partial or complete) of each affected nerve. g. Provide a measurement of the discrepancy between the length of the Veteran’s legs. If the examiner(s) cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following left ankle fusion surgery in October 2014 under 38 C.F.R. § 4.30(b). 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished with a copy of this readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.