Citation Nr: 21031361 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-42 690 DATE: May 21, 2021 ORDER An extension to February 21, 2012, for the temporary total rating (TTR) based on post-surgical convalescence under 4.30 (2018) following surgery on August 31, 2011, is granted. FINDING OF FACT Right knee surgery was performed on August 31, 2011 which necessitated a period of convalescence to February 21, 2012, due to the need for post-operative recovery during this period. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a TTR for convalescence, from August 31, 2011 to February 21, 2012, following right knee surgery performed on August 31, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to June 2003. The matter of TTR for the right knee surgery on August 31, 2011 is on appeal from a June 2014 rating decision issued by the Regional Office (RO) in San Diego, California. The RO denied entitlement to a TTR for the right knee surgery on August 31, 2011 and entitlement to a TTR for the left knee surgery on October 16, 2013. The Veteran filed a notice of disagreement in July 2014, which was followed by an October 2015 statement of the case. The Veteran filed a substantive appeal (VA Form 9) in November 2015. During the current appeal stream, in a September 2015 rating decision, the RO granted a TTR for left knee surgery on October 16, 2013. As entitlement has been granted for TTR for left knee surgery, the only matter before the Board is entitlement to a TTR for right knee surgery on August 31, 2011.The Veteran testified at a videoconference Board hearing at the RO in San Diego, California, in February 2019 before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. In May 2019, the Board granted TTR from August 31, 2011 to November 1, 2011 for convalescence following right knee patellofemoral groove replacement surgery. The Veteran appealed May 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). An August 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. In the JMR, the parties agreed that that the Board overlooked favorable medical evidence of record and that the Board failed to gather favorable private treatment records from the Palomar Orthopedic Specialists and Physical Therapy and Hand Centers of Ramona, California. This matter was before the Board again in March 2021. The Board remanded the issues in order to obtain the private treatment records referenced in the JMPR. To date, the Veteran has not completed and submitted an Authorization to Disclose Information form (VA Form 21-4142a) so that the Board request the private treatment records referenced in the JMPR. A May 2021 supplemental statement of the case again denied the claim. TTR for Convalescence Following the Right Knee Surgery Temporary total disability ratings for convalescence are governed by 38 C.F.R. § 4.30. Temporary total ratings will be assigned from the date of hospital admission and continue for 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 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). The Veteran is currently in receipt of a TTR for convalescence following the right knee surgery from August 31, 2011 to November 1, 2011. The Veteran appeals for extension of the TTR beyond November 1, 2011. After a review of the evidence, both lay and medical, the Board finds that the evidence is in equipoise on the question of whether the right knee surgery that was performed on August 31, 2011 necessitated a period of convalescence to February 21, 2012, due to the need for post-operative recovery. According to December 2011 private treatment records, the private examiner noted that the Veteran is having a "slow recovery" from the August 31, 2011 right knee surgery, noting that since surgery he "stepped into a hole and strained the right knee" on September 11, 2011. The private examiner noted that the Veteran had a large collection of joint fluid in the right knee as evidence by the swelling, which could have been caused by the September 2011 injury. The private examiner recommended an arthroscopy to examine the intraarticular structures and extensor mechanism, but the Veteran declined, opting for therapy instead. The private examiner requested that the Veteran return in six weeks for a long-term clinical followup. On February 21, 2012, the Veteran sought follow up private treatment, reporting aching and sharp pain in the right knee. The private examiner found that the right knee was getting worse, noting that the pain was aggravated by climbing or descending stairs, walking, and standing. The private examiner noted symptoms of clicking or popping, lack of joint motion, limping, night pain, night-time awakening, stiffness, swelling, tenderness, and weakness. The next medical treatment record of record is dated March 19, 2012. According to the March 19, 2012 private treatment records, which were documented 12 days status post right knee scope, indicated that the right knee was "doing well" and that the wound looked good. The private examiner noted no effusion, tender calf, and swelling. The Veteran did not need any assistive devices and the knee was full weight bearing. Resolving reasonable doubt in favor of the Veteran, the Board finds a TTR for the period of convalescence from August 31, 2011 to February 21, 2012 was necessary due to the need for post-operative recovery. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.