Citation Nr: 21028595 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-26 804 DATE: May 11, 2021 ORDER An extension of the temporary total evaluation for surgical convalescence of service-connected bilateral foot disability, assigned from April 4, 2016 through May 31, 2016 is denied. An extension of special monthly compensation based on housebound criteria assigned from April 4, 2016 through May 31, 2016 is denied. REMANDED A disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's need for convalescence following April 4, 2016 left foot surgery ended prior to June 1, 2016. 2. After May 31, 2016, the Veteran has not had a single service-connected disability rated as 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for an extension of a temporary total rating for left foot surgery beyond May 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 2. The criteria for assignment of the award of SMC at the housebound rate after May 31, 2016 have not been met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from August 2002 to February 2009. This appeal comes before the Board of Veterans' Appeals (Board) from February 2018 and April 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2018 rating decision, the RO granted a temporary total rating based on surgical or other treatment necessitating convalescence effective from April 4, 2016 through May 31, 2016 and also granted special monthly compensation based on housebound criteria being met from April 4, 2016 through May 31, 2016. The Veteran's notice of disagreement (NOD) was received in July 2018. The RO issued the statement of the case (SOC) in December 2019 and the Veteran's VA Form 9, substantive appeal was received in February 2020. In the April 2018 rating decision, the RO continued the 50 percent rating for the service-connected PTSD. The Veteran's NOD was received in July 2018. The RO issued the SOC in July 2019, and the Veteran's VA Form 9, substantive appeal was received in September 2019. In a statement accompanying the September 2019 VA Form 9 substantive appeal, the Veteran's representative raised the issue of TDIU. Thus, an inferred claim for TDIU was raised as part and parcel of his increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, given that an inferred claim for a TDIU has been reasonably raised by the record, entitlement to a TDIU will be considered in the decision below. 1. Entitlement to an extension of the temporary total evaluation for surgical convalescence of service-connected bilateral foot disability, assigned from April 4, 2016 to May 31, 2016. Temporary total disability rating will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30(a) for treatment of a service-connected disability, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. Under 38 C.F.R. § 4.30(a), a temporary total rating will be assigned if the hospital or outpatient treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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. The Veteran has been granted a temporary total evaluation for April 2016 left foot surgery from April 4, 2016 through May 31, 2016. He is seeking an extension of this total evaluation to October 1, 2016. See July 2018 NOD. In July 2018, the Veteran submitted an affidavit describing his treatment and impairment post-surgery. He reported that after the surgery was completed, his left foot was fitted into a cast for healing purposes. He stated that the cast was changed once a week for twelve weeks total until late June 2016. The Veteran stated that, while using the casts, he needed to use crutches to ambulate as his physician advised him to avoid any weight-bearing activity for healing purposes. The Veteran reported that after the final cast was removed in late June 2016, he was prescribed orthopedic boots for both feet. Along with the boots, he reported that he was advised to use crutches to avoid any weight bearing activity for healing purposes. He described using these crutches and boots until October 2016, at which point his foot healed enough to ambulate without the need for crutches, boots or anything else to avoid weight-bearing activity. The Veteran's treatment records reflect that he underwent left foot surgery on April 4, 2016. The Veteran was discharged that same day and was instructed by podiatry to ambulate with partial weightbearing with his CAM boot and that it was okay to walk using the left heel when walking without the CAM boot. At the Veteran's first post-operative appointment on April 11, 2016, it was noted that the Veteran was wearing his CAM boot and was ambulating weight bearing as tolerated. The surgical incision was healing well with no signs of infection. On April 18, 2016 the Veteran reported that he had been weight bearing as tolerated and that his pain had decreased from the previous appointment a week earlier. The Veteran's sutures were removed, and the surgical incision was intact with no signs of infection. The Veteran was instructed to continue weightbearing as tolerated in the CAM boot for one more week and then to transition to a stiff soled shoe. The Veteran underwent a VA Foot Conditions examination in September 2016. The Veteran reported pain over the dorsal arch and in his left heel. He also reported pain with walking. The Veteran was no longer wearing his CAM boot and was not noted to be using any assistive devices for ambulation. The Board finds that the criteria for an extension of a temporary total rating for left foot surgery have not been met. In this regard, while the Veteran claims that he was advised to use crutches to avoid weight-bearing until October 2016 and was prescribed orthopedic boots for the same purpose, the medical evidence of record does not support and is inconsistent with the Veteran's reported history of his post-surgical treatment. As noted above, VA treatment records reflect that by mid-April he was instructed to continue weightbearing as tolerated in the CAM boot for one more week and then to transition to a stiff soled shoe. There is no evidence of record to support the Veteran's contentions that he (1) required a cast for 12 weeks after the surgery; (2) was required to use crutches to ambulate post-surgery; (3) was ever instructed to be completely non weight-bearing for several months post-surgery; or (4) was prescribed orthopedic boots to avoid weight-bearing post-surgery. The Veteran's July 2018 affidavit is inconsistent with the contemporaneous April 2016 VA treatment records as well as the Veteran's own statements as recorded in treatment records and the September 2016 VA examination. In this regard, contemporaneous evidence has greater probative weight than a history reported by the appellant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Therefore, the Veteran's contemporaneous reports post-surgery, as well as the contemporaneous treatment records and surgical notes are afforded more probative value than his later reports of having postoperative residuals including being instructed to avoid weight bearing for nearly six months. As such, the preponderance of evidence does not show a need for convalescence or any applicable postoperative residuals beyond May 31, 2016. See 38 C.F.R. § 4.30. After May 31, 2016, the criteria for a temporary total rating for left foot surgery have not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and an extension of the temporary total evaluation for left foot surgery is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an extension of special monthly compensation based on housebound criteria assigned from April 4, 2016 to May 31, 2016. The SMC provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. As noted above, in the February 2018 rating decision, the RO granted special monthly compensation based on housebound criteria being met from April 4, 2016 through May 31, 2016. The Veteran is seeking an extension of this special monthly compensation to October 1, 2016. See July 2018 NOD. The Board finds that the assignment of SMC based on housebound criteria beyond May 31, 2016 is not warranted. The Veteran was granted a temporary total evaluation based on one disability due to left foot surgery with additional disabilities independently rated at least 60 percent during such period. See 38 U.S.C.§ 1114(s); 38 C.F.R. § 3.350(i); Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As discussed above, an extension of such temporary total evaluation period is not warranted. As such, the Veteran does not meet the criteria for SMC based on housebound beyond May 31, 2016, the final day of the Veteran's temporary total evaluation for left foot surgery. Furthermore, the evidence does not show, and the Veteran has not claimed, that he is permanently housebound due to his disabilities. As discussed above, the Veteran reported going walking during the September 2016 VA examination. In addition, during the September 2018 VA psychiatric examination, the Veteran reported that he was self-employed doing installation of wiring for IT, audiovisual and electrical contracts and reported that while he usually stays at home he also runs errands such as taking his daughter to the babysitter. Thus, beyond May 31, 2016, the Veteran has not had a single service-connected disability rated as 100 percent disabling and has not been shown to be permanently housebound due to his disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the assignment of SMC based on housebound criteria outside of the period already assigned is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 50 percent for PTSD is remanded. During the Veteran's most recent VA examination for his PTSD in September 2018, the Veteran denied experiencing panic attacks and denied anhedonia. In a June 2020 affidavit, the Veteran stated that he experiences panic attacks at work 3 to 4 times a week which are triggered by flashbacks. Additionally, VA treatment records dated in August and September 2020 reflect that the Veteran reported that threatening/violent interactions with police have exacerbated his PTSD symptoms and he reported experiencing anhedonia. VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). In light of the time period since the September 2018 VA examination and the Veteran's reported symptomatology which suggests a worsening of his disability, the Veteran should be afforded a new VA examination to assess the current severity of his service-connected PTSD with depressive disorder. Accordingly, the matter is remanded for further development. 2. Entitlement to a TDIU is remanded. The Veteran's claim for TDIU is inextricably intertwined with the claim for an increased rating for PTSD as the Veteran raised the issue of TDIU in connection with the claim for an increased rating for PTSD and contends that his service-connected disabilities preclude gainful employment. See, e.g. September 2019 VA Form 9. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for TDIU must be remanded. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to assess the current severity of his service-connected PTSD. The claims folder, including a copy of the REMAND, should be made available to and reviewed by the examiner in connection with the examination. The examiner should identify and discuss in detail all current manifestations/symptoms of the Veteran's service-connected PTSD. The examiner should also provide an opinion concerning the current degree of social and occupational impairment resulting from the service-connected PTSD. A full rationale must be provided for all stated medical opinions. 2. Following adjudication of the Veteran's pending PTSD claim pursuant to this remand, adjudicate the claim for entitlement to a TDIU. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.