Citation Nr: 21040607 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-27 443 DATE: July 6, 2021 ORDER Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 for the service-connected left knee disability based on convalescence following surgical procedures is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for total left knee arthroplasty is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim for a temporary total disability rating based on the need for convalescence following total left knee replacement in January 2014 was not timely filed. 2. Following his June 2015 surgery, the Veteran's left knee did not necessitate one month of convalescence, was not manifested by severe postoperative residuals, and/or require immobilization. CONCLUSION OF LAW The criteria for entitlement to a temporary total disability rating based on the need for convalescence following surgical treatments of the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Air Force from October 1981 to October 2001. These matters come before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. This matter was previously remanded by the Board for further development in November 2019. Briefly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record. In this case, the evidence has raised the matter of unemployability due to the Veteran's service-connected left knee disability. Therefore, the issue is raised by the record and is properly before the Board. The Board notes that new evidence has been associated with the Veteran's claims file since the July 2020 supplemental statement of the case (SSOC). Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. 38 C.F.R. § 20.1304 (c); Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, if an appellant filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted by the appellant or representative to the AOJ or the Board. 38 U.S.C. § 7105 (e). Because the Veteran filed his substantive appeal after February 2, 2013, and he has not specifically requested initial AOJ consideration of the evidence, such waiver is presumed 1. Entitlement to a temporary total disability rating based on the need for convalescence following surgical treatments of the service-connected left knee disability. The Veteran initially filed a claim for a temporary total disability rating for his left knee on May 17, 2016 based on surgeries performed in January 2014 for total left knee arthroplasty and in June 2015 for total left knee arthroplasty revision. A total disability rating of 100 percent will be assigned if treatment of a service-connected disability resulted in surgery necessitating: (1) 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)(1), (2), (3). Extensions of one, two or three months beyond the initial three months may be granted; extensions of one or more months up to six months beyond the initial six months period may be granted upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b)(1). The Board notes initially that a temporary total disability rating may be assigned under 38 C.F.R. § 4.30 when a convalescent period of 1, 2, or 3 months is required for treatment of a service-connected disability following a hospital discharge. 38 C.F.R. § 4.30. In order for a temporary total disability rating claim to be considered timely filed, it must be filed by a Veteran within 1 year of the date of surgery unless the disability "was so incapacitating that it prevented him or her from filing" the claim for 30 days immediately following the date on which he or she became permanently and totally disabled due to surgery in which case the effective date for an award of a temporary total disability rating will be the date of receipt of the claim. 38 C.F.R. § 3.400 (b)(1)(ii)(B). The evidence of record demonstrates the Veteran underwent left total knee arthroplasty in January 2014 at Mississippi Baptist Medical Center. However, an analysis of the Veteran's entitlement to a temporary total disability rating is not required for the 2014 surgery because he has not met the threshold requirement of filing his claim within one year of surgical treatment of his service-connected disability necessitating convalescence. Following the January 2014 left total knee arthroplasty, private treatment records reflect the Veteran's follow up visits for his left knee. In March 2014, six weeks following his surgery, the Veteran reported that he was doing well, and x-rays of the knee show good alignment with no evidence of loosening. In February and June 2015, treatment records reflect the Veteran's complaints for soreness, popping, and instability in the left knee. In June 2015, treatment records show the Veteran was recommended for a polyethylene exchange, with thicker polyethylene, and informed of the risks for such surgery. In June 2015, private treatment records indicate the Veteran underwent a polyethylene exchange and open lateral retinacular release of the left knee. A description of the procedure demonstrates a longitudinal incision was made in the left knee where the polyethylene was removed and replaced, and a lateral retinacular release was also performed to aid in patella tracking. Post-operative notes indicate the Veteran was in good condition following the procedure and did not suffer any intraoperative complications. Following his June 2015 revision surgery, private follow-up treatment records in August and October 2015 reflect the Veteran's reports that he was doing well and had no pain. In June 2016, the Veteran stated that he was again doing well and experienced less pain and instability in the knee. In January 2017, the Veteran submitted medical literature detailing information regarding total knee replacement revision surgeries, particularly noting the extensiveness of the procedure and its prolonged recovery time. Private treatment records from MS Sports Medicine and Orthopedic Center indicate the Veteran followed up with his left knee revision surgery. In July 2016, the Veteran reported intermittent clicking and pain with strenuous activity and was recommended physical therapy and exercises for strengthening and range of motion. A February 2020 letter from private physician, Dr. J.A., noted the Veteran's January 2014 left total knee arthroplasty and June 2015 revision surgery and indicated that revision surgeries can typically be more extensive and difficult to recover from. He also stated the Veteran had been diligent in his physical therapy but had maxed out his treatment sessions, and while there had been improvement following those surgeries, he continued to experience pain and limitations affecting his life and activities of daily living. A February 2020 VA examination demonstrates the Veteran did not use assistive devices to aid in mobility. In an August 2020 correspondence, the Veteran asserted that his knee was rapidly deteriorating, and the use of assistive devices was not an option for him because he was a proud Veteran and considered that "giving up." After review of the medical and lay evidence, the Board concludes that the preponderance of the evidence is against the assignment of a temporary total rating after the June 2015 left knee revision surgery. The medical evidence demonstrates that care providers did not advise the Veteran to remain in bed, stay homebound, or avoid bearing weight on the left leg. Furthermore, private follow-up treatments show the Veteran reported feeling good and less pain and instability in his knee. The Board has considered the lay evidence. The Veteran is competent to report pain of the left leg following his surgeries. Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge). However, he is not competent to determine whether his surgical treatment resulted in the need for convalescence as contemplated in 38 C.F.R. § 4.30 for an award of a temporary total rating. The Board acknowledges medical literature submitted by the Veteran detailing the complexity and extensive prolonged recovery time for revision surgeries. But, contemporaneous medical records since June 2015 do not show that the Veteran met the criteria for a temporary total rating. Further, the Veteran has not asserted that his surgery necessitated continued use of assistive devices. As such, the preponderance of the evidence is against a finding that the Veteran had severe postoperative residuals of his left knee revision surgery such as incompletely healed surgical wounds, therapeutic immobilization of a major joint, application or the equivalent of a body cast, the need for house confinement, or the need for the continued use of a wheelchair or crutches with regular weight-bearing prohibited due to either surgery; or immobilization. 38 C.F.R. § 4.30. While the Veteran believes that the severity of the postoperative residuals merits the assignment of a temporary total rating, the contemporaneous evidence shows that he did not require convalescence as it is defined under 38 C.F.R. § 4.30. Hence, the Board finds that the preponderance of the evidence is against the awarding of a temporary total rating under the provisions of 38 C.F.R. § 4.30 for the service-connected left knee disability based on convalescence following the June 2015 surgical revision, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMAND 2. Entitlement to a disability rating in excess of 30 percent for total left knee arthroplasty is remanded. The Veteran contends that his left knee disability is more disabling than contemplated in the assigned evaluation. Although the Board regrets the delay, further development is required before the Board can issue an appellate decision. In the November 2019 remand, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the current severity of his left knee condition. The examiner was asked to test the Veteran's active motion, passive motion, and pain with weight bearing and non-weight bearing testing for both joints. The examiner was also asked to elicit information regarding the severity, frequency, and duration of flare-ups and degree of functional loss during flare ups. Pursuant to the November 2019 Board remand, a February 2020 VA examination was administered. The examination reflected abnormal ranges of motion on active range testing with pain and functional loss noted. The examiner indicated that pain, fatigue, weakness, and lack of endurance limited functional ability with flare ups, demonstrated by flexion to 90 degrees and extension to 0 degrees in the left knee. Functional impact was noted to be reduced by running, jumping, climbing, squatting, kneeling, prolonged sitting, and strenuous activities due to limitations. There was evidence of pain on passive range of motion and on non-weight bearing testing of the left knee. However, the examination findings did not include passive range of motion measurements. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The omission in discussing the passive range of motion measurements renders the February 2020 examination inadequate. As such, an addendum opinion is needed to address the Veteran's passive range of motion measurements, as the examiner has also indicated objective evidence of pain on passive range of motion and non-weight bearing testing. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. As noted in the introduction, entitlement to a TDIU has been raised by the evidence. Specifically, an August 2020 correspondence from the Veteran indicates that he has been unable to work for the past four years as a result of pain limitations posed by his left knee nor able to perform physical work duties of walking airfield pavements with inspection teams. Accordingly, the issue of entitlement to a TDIU has been raised; however, a remand is required prior to adjudication of the claim as the Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the RO addressed TDIU in the first instance. The matters are REMANDED for the following actions: 1. Issue a notice letter to the Veteran regarding the claim for a TDIU. Ask him to complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any necessary additional development 2. Obtain an addendum opinion from the examiner who conducted the February 2020 VA examination or another appropriate clinician. The examiner providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. The claims folder and a copy of this remand in its entirety must be provided to the examiner in conjunction with the addendum opinion. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. If examination of the Veteran is necessary, such should be arranged. (Continued on the next page) To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the both knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.