Citation Nr: 0001873 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 95-40 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to an extension beyond December 31, 1994, of a temporary total rating for a period of post-operative convalescence under 38 C.F.R. § 4.30 (1999). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to January 1953. This matter comes to the Board of Veterans' Appeals (Board) from a May 1995 rating decision of the Department of Veterans Affairs (VA) Los Angeles Regional Office (RO) which denied the veteran's request for an extension beyond December 31, 1994, of a temporary total rating for a period of post- operative convalescence under 38 C.F.R. § 4.30. The Board notes that the veteran has raised a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Since this matter has not as yet been adjudicated, and inasmuch as it is not inextricably intertwined with the issue now before the Board on appeal, it is referred to the RO for initial consideration. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran underwent surgery on his service-connected left foot on November 29, 1994. 3. He was assigned a temporary total disability rating under 38 C.F.R. § 4.30 from November 29 through December 31, 1994. 4. The evidence of record does not demonstrate that the veteran's left foot surgery required continued convalescence beyond December 31, 1994, or that it resulted in severe postoperative residuals such as an incompletely-healed surgical wound, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of crutches (regular weight bearing prohibited) beyond December 31, 1994. CONCLUSION OF LAW The criteria for an extension beyond December 31, 1994, of a temporary total convalescence rating following surgery for a service-connected left foot disability have not been met. 38 U.S.C.A. 5107 (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A review of the record shows that in April 1981 the RO granted service connection for bilateral hallux valgus and assigned an initial, combined 10 percent disability rating under 5299-5277. In February 1983, following a subsequent claim for an increased rating, the RO assigned separate 10 percent disability ratings for each foot, pursuant to Diagnostic Code 5280. Under Diagnostic Code 5280, the maximum disability rating of 10 percent is in order when the hallux valgus is severe, if equivalent to amputation of the great toe, or when the hallux valgus is operated on with resection of the metatarsal head. Notwithstanding several subsequent periods of temporary total evaluations pursuant to 38 C.F.R. § 4.30, the separate 10 percent disability ratings have remained in effect to the present time. On November 29, 1994, the veteran was hospitalized after he complained of a painful left second hammertoe with neuroma- like symptoms in the second interspace. It was noted that he had received no relief from injections into the second interspace or padding and strapping; as such, he opted for surgical correction. Under local anesthesia, the veteran underwent arthroplasty of the left second toe and nerve entrapment of the second interdigital nerve. The surgical report shows that the wound was then dressed with gauze and a post-operative shoe. No complications were noted. He was discharged on November 30, 1994. Subsequent VA outpatient records show that on follow-up examination on December 5, 1994, the veteran was noted to be doing well and without complaints. On examination later that month, he indicated that he was without pain and had been keeping off his left foot. Physical examination showed no pain on motion. The surgical wound was healing well and the sutures were removed. On follow-up examination on January 9, 1995, he again denied pain, but indicated that he still noticed some swelling in the area. Physical examination showed minimal swelling without pain along the incision site. The assessment was status post second left arthroplasty healing. The veteran's nails were reduced and debrided. On March 23, 1995, the veteran complained of pain in the third toe with ambulation. It was noted that he had been wearing Buttress pads since the surgery with some relief. Physical examination showed that the surgical scar was well healed and there was no pain to palpation or on range of motion. The assessment was status post surgery of the left second toe with possible paresthesias of the third digit. The veteran was provided a new Buttress pad and advised to return in one month. In March 1995 the RO granted a temporary total rating for convalescence under 38 C.F.R. § 4.30 from November 29, 1994 to December 31, 1991. In April 1995 the veteran requested an extension of his temporary total rating, stating that "I need time to convalescence from 1-1-95 to 3-31-95. My left foot hurt to walk and stand on." In support of his claim, he submitted an August 1995 handwritten letter on stationery from the VA Medical Center, in which an individual (presumably a VA medical professional) indicated that "[The veteran] had surgery on 11/29/94 on his left foot. He is still having some pain. Please increase his stay in the convalescent facility till 10/1/95." The RO thereafter obtained additional VA outpatient treatment records for the period of March 1995 to January 1997. These records show that on March 28, 1995, the veteran was seen for a wart on his finger. No complaints or abnormalities regarding his left foot were recorded. The following month, he was seen on follow-up. He denied specific complaints and stated that he exercised regularly. The remaining treatment records through January 1997 are negative for complaints or abnormalities pertaining to the left foot. The veteran underwent VA medical examination in March 1997 at which he reported that he had developed problems with his feet in service due to ill-fitting boots. Since that time, he indicated that he had undergone multiple surgeries on his feet. Physical examination showed multiple well-healed dorsal incisions. There were no signs of any infections or significant inflammation. When standing, the veteran had mild plano valgus deformity of the feet. He was able to heel and toe walk with some discomfort. The impressions included status post multiple foot surgeries with an attempt at reestablishing the arcade of the forefoot. The examiner concluded that the veteran was able to continue working with appropriate shoes. Criteria A 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 for a period of one, two, or three months. Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. 38 C.F.R. § 4.30 (1999). Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post- operative convalescence (38 C.F.R. § (a)(1)); (2) surgery with severe post-operative residuals such as incomplete healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited) (38 C.F.R. § (a)(2)); or immobilization by cast, without surgery, of one major joint or more (38 C.F.R. § 4.30(a)(3)). Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). Extensions of one or more months up to six months, beyond the initial six months, may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Adjudication Officer. 38 C.F.R. § 4.30(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Upon review of the record, the Board concludes that the veteran's claim for an extension of a temporary total disability rating based on convalescence beyond December 31, 1994, is well grounded. It is in essence a claim for continuation of a total evaluation based on a contention of a higher level of impairment of a service-connected disability, not unlike the standard claim for an increased evaluation for a service-connected disability. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran's assertions concerning the severity of his service-connected left foot disability for the period of time in question (that are within the competence of a lay party to report) are sufficient to conclude that his claim for extension of a temporary total convalescence evaluation is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). A review of the evidence in this case reflects that the preponderance of the evidence is against the veteran's claim for an extension of a temporary total rating under 38 C.F.R. § 4.30 beyond December 31, 1994, for convalescence following surgery. Although the veteran claims that he continued to experience left foot symptomatology after that date, it does not show that he required continued convalescence due to post-operative residuals, that he experienced severe postoperative residuals (such as unhealed surgical wounds, house confinement, or the necessity for continued use of crutches), or that he required continued immobilization by cast. Rather, the medical evidence clearly shows that his surgical wounds healed well and that he had been using Buttress pads since the surgery. There is no evidence that the veteran was confined to his house (as he apparently came for outpatient follow-up examinations shortly after surgery), nor did he require continued immobilization of the joint as evidenced by treatment records showing full range of motion with no pain. The Board notes the veteran's contentions that additional convalescence was required because he continued to experience pain in his left foot while walking or standing. Likewise, the Board has considered the August 1995 letter from the VAMC indicating that the veteran was still having some pain. However, the total rating for convalescence, as specified above, is warranted while recovery is ongoing for surgical residuals only, such as incompletely healed surgical wounds, casting, or joint immobilization needed for surgical recovery. Thereafter, a schedular rating is reassigned following such recovery to cover the level of disability, even worsening disability. A total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic (or becomes worse) following the surgery. The appropriate schedular rating is intended to cover this situation. In this case, the follow-up outpatient treatment records clearly show that the veteran had no significant surgical residuals beyond December 31, 1994. Again, his surgical wounds healed well and there is no indication that he required crutches or immobilization as of January 1995. This conclusion is strengthened by the VA outpatient treatment records which are entirely silent for indications of left foot complaints beyond March 1995. In summary, the medical evidence since December 31, 1994 does not demonstrate that the veteran's left foot surgery required continued convalescence or that it resulted in severe postoperative residuals such as an incompletely-healed surgical wound, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of crutches. Based on these findings and following a full review of the record, the Board concludes that the preponderance of the evidence is against the veteran's claim for extension of a temporary total rating under the provisions of 38 C.F.R. 4.30 beyond December 31, 1994. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an extension of a temporary total evaluation based on convalescence beyond December 31, 1994. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an extension beyond December 31, 1994 of a temporary total rating for a period of post-operative convalescence under 38 C.F.R. § 4.30 is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals