Citation Nr: 0002456 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 96-19 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for low back pain with limitation of motion. 2. Entitlement to an effective date earlier than June 18, 1994, for the assignment of a 30 percent evaluation for the residuals of a left Achilles tendon injury. 3. Entitlement to a extension of a temporary total disability rating for a period of convalescence based on Achilles tendon surgery beyond November 1, 1995, pursuant to 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from June 1980 to August 1980 and a period of active duty training (ACDUTRA) for several weeks in February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Reno, Nevada, and Montgomery, Alabama, which denied the claims on appeal. During the pendency of these appeals, the veteran moved to Alabama, and jurisdiction of all the claims was transferred to the Montgomery, Alabama, RO. It appears to the Board that the veteran may have recently attempted to raise several additional issues, including a § 1151 claim, a clothing allowance claim, and claims for an increased rating for a back disability and extension of a subsequent temporary total rating. If he desires to pursue these issues, he and/or his representative should do so with specificity at the RO. As there has thus far been no adjudication of these additional issues, the Board has no jurisdiction of the issues at this time. In September 1998, the Board remanded the issue to the RO to schedule a Travel Board hearing before a Member of the Board. As such, a hearing was held in Montgomery, Alabama, in October 1999. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran's claims. 2. The veteran's low back disability is currently manifested by subjective complaints of pain. 3. Current objective findings of the veteran's low back disability include some limitation of range of motion, negative straight leg raises, and a normal X-ray examination. 4. There is no objective clinical evidence of ankylosis, postural abnormalities, fixed deformities, or neurological involvement. Neither severe lumbosacral strain, severe limitation of low back motion, nor severe intervertebral disc syndrome has been demonstrated by the objective competent evidence of record. 5. In August 1992, the RO granted service connection for the residuals of a left Achilles tendon injury and a 10 percent evaluation was assigned effective March 1991. Thereafter, the veteran challenged the effective date of the evaluation. 6. By Board decision dated in March 1994, the evaluation was increased to 20 percent and the RO maintained the effective date of March 1991. A statement of the case on the effective date was issued until April 1994 and no timely substantive appeal was filed. 7. In June 1994, the veteran filed a claim for an increased rating for his left Achilles tendon disability, which was granted to 30 percent. An effective date of June 18, 1994, was established by rating decision dated in November 1995, based on the date the veteran filed the reopened claim. 8. There is no medical evidence of an increase in the veteran's left Achilles tendon disability prior to June 18, 1994. 9. The veteran underwent a surgical procedure for left Achilles tendinitis on September 20, 1995. 10. The report of hospital discharge or follow-up treatment notes show that the veteran required one additional month of convalescence, to December 1, 1995, following a September 1995 tenolysis, but no more. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for low back pain with limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5003, 5289, 5292, 5293, 5295 (1999). 2. The criteria for an effective date earlier than June 18, 1994, for the assignment of a 30 percent evaluation for the residuals of a left Achilles tendon injury, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.400 (1999). 3. Entitlement to an additional one month extension of a temporary total disability rating for a period of convalescence based on Achilles tendon surgery is granted to December 1, 1995, but no more, pursuant to 38 C.F.R. § 4.30. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board determines that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). Further, the Board finds that all relevant facts have been properly developed and no additional assistance to the veteran is required to comply with the duty-to-assist mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an Evaluation in Excess of 20 Percent for Low Back Pain with Limitation of Motion Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). However, the Board will consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Further, in evaluating increased ratings, consideration will be given to whether higher ratings are available under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, in DeLuca, the Board was directed to consider whether a veteran's complaints of shoulder pain could significantly limit functional ability during flare-ups or when the arm was used repeatedly, thus warranting a higher evaluation under 38 C.F.R. § 4.40. Moreover, the Board will consider whether weakened movement, excess fatigability, and incoordination support higher ratings under 38 C.F.R. § 4.45. See DeLuca, 8 Vet. App. at 207. In addition to the regulations cited above, the VA General Counsel issued a precedential opinion (VAOPGCPREC 23-97) holding that a claimant who had arthritis and instability of the knee may be rated separately under DCs 5010 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. In determining whether additional disability exists, for purposes of a separate rating, the veteran must meet, at minimum, the criteria for a noncompensable rating under either of those codes. Cf. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). Finally, the Board notes that the RO granted entitlement to service connection for low back pain with limitation of motion by rating decision dated in July 1997 and a 20 percent evaluation was assigned. The veteran disagreed with the rating by correspondence dated in August 1997 and a statement of the case was issued with the claim characterized as entitlement to an increased rating. A timely substantive appeal followed. In view of the recent guidance, the issue before the Board is taken to include whether there is any basis for "staged" ratings at any pertinent time, to include whether a current increase is in order. See Fenderson v. West, 12 Vet. App. 119 (1999). As the statement of the case and the subsequent supplemental statements of the case have indicated that all pertinent evidence has been considered, and the RO has determined that a 20 percent rating is to be assigned for the entire period at issue, the Board can proceed with its review without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has rated the veteran's low back disability under DC 5292 (limitation of motion). The Board will also consider DCs 5003, 5289, 5293, and 5295 for arthritis, lumbar ankylosis, intervertebral disc syndrome, and lumbosacral strain. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (1999). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is warranted for each major joint or groups of joints affected by limitation of motion, to be combined, not added under DC 5003. It is noted, however, that there is no application of this provision in this case as there is no evidence of arthritis in the low back at this time. Under DC 5289, unfavorable ankylosis of the lumbar spine warrants a 50 percent evaluation, and favorable ankylosis warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5289 (1999). Slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation under DC 5292. A 20 percent evaluation requires moderate limitation of motion; while a 40 percent evaluation, the highest given under this code, requires severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (1999). Under DC 5293, a noncompensable evaluation is warranted for postoperative, cured intervertebral disc syndrome. A 10 percent evaluation is warranted upon a showing of mild intervertebral disc syndrome, while a 20 percent evaluation requires moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (1999). Under DC 5295, a noncompensable evaluation is warranted upon a showing of slight lumbosacral strain with subjective symptoms only, while a 10 percent evaluation may be assigned with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation, the highest award under this code, requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, and positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (1999). The veteran filed a claim for a low back disorder on a secondary basis in October 1996. In December 1996, he sought treatment for neck and back pain with nonproductive cough. The diagnostic impression was muscle spasms and bronchitis. He was prescribed Flexeril, Motrin, and Bactrim. In a February 1997 VA spine examination report, he claimed a history of low back pain beginning in 1994 without a history of back injury. He complained of constant low back pain, and difficulty bending forward and lifting weights. Physical examination revealed mild tenderness over L3-S1, positive straight leg raises bilaterally at 30 degrees, and an inability to walk on his heels and toes due to an injury to the Achilles tendon. There was an increased lumbar lordosis, he walked with an antalgic gait, he expressed pain in lateral flexion and rotation, but he had no evidence of neurological involvement. Range of motion was reported as forward flexion to 50 degrees, backward extension to 25 degrees, right and left lateral flexion to 20 degrees, and left and right rotation to 25 degrees. An X-ray report showed that the vertebral bodies, intervertebral spaces, and foramina were normal. The facet joints and posterior elements were preserved and the sacroiliac joints, sacrum, and coccyx were unremarkable except for the sacralization of L5. The final diagnosis was low back pain secondary to sacralization of L5 and partly due to left Achilles tendon injury with recurrent tendonitis. There is no specific mention of treatment for a back disability in the outpatient treatment records associated with the claims file from the time of the February 1997 VA examination. In April 1999, the veteran underwent another VA spine examination. He reported a history of low back pain after the problems with his Achilles tendon began. He complained that whenever the left leg hurt, the low back hurt. He was also told he had mild lumbar arthritis. Medications included Motrin and Tylenol. He was able to sit, stand, and walk but his back became stiff if he did any of those things too long. There was no evidence of paresis or paralysis. Sudden movements, lifting, or twisting caused a flare-up of the low back problems. He did not use a cane or brace. Physical examination revealed mild lumbar curve reversal. The sacroiliac joints and renal angle were not tender. Range of motion was reported as forward flexion to 80 degrees, extension to 10 degrees, and lateral bending to 15 degrees. He complained of a dull ache in the low back without pain radiation. Gluteus, medius, maximus, and sciatic nerve sites were not tender, and straight leg raises were negative bilaterally. An X-ray of the lumbosacral spine was reportedly normal. The final diagnosis was chronic low back myofascial mechanical back pain syndrome. In a concurrent VA joint examination, the same examiner noted that the veteran's functional impairment of the spine was mild to moderate. In an October 1999 hearing before the Board, the veteran testified that he did not have problems with his back in service but developed difficulty because of his Achilles tendon disability. Medications included Motrin and another medication that had been prescribed but he did not take because it upset his stomach. He also used ice and heat, depending on the severity, and had been to a pain management specialist. He reported that he could not bend, squat, or run. He indicated that he was told his vertebrae were decompressed and rubbing together and that was why he had pain. He observed that he was in constant motion in his job as a computer specialist. Upon further questioning, the veteran related that he understood that the discs were lodged between the vertebrae and had decompressed to the point that he had "bone scrubbing" and that in one particular area of his back the vertebrae had fused together. He reiterated that surgery had been mentioned as a possible treatment. He reported pain down his left leg but noted that he had experienced pain for a long time and was conditioned to it. It was observed that he had crutches due to recent knee surgery and he acknowledged that he never had normal walking because of the Achilles tendon problem. The current 20 percent rating contemplates moderate limitation of motion (DC 5292), moderate intervertebral disc syndrome with recurring attacks (DC 5293), and lumbosacral strain with muscle spasms on extreme forward bending, loss of lateral spine motion or unilateral muscle spasm in standing position (DC 5295). Separate ratings for these pathologies are prohibited: "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity." 38 C.F.R. § 4.14 (1999); Estaban v. Brown, 6 Vet. App. 259 (1994); Brady v. Brown, 4 Vet. App. 203, 206 (1993). Initially, the Board notes that the evidence does not support a finding of ankylosis of the lumbar spine. In the most recent VA examination, the veteran demonstrated nearly normal range of motion in the spine. Moreover, there was no X-ray evidence of fixed deformities. Because the evidence does not show ankylosis of the low back, there is no basis under DC 5289 for an increased rating. The veteran's current rating contemplates moderate limitation of motion under DC 5292. The most recent VA examination report indicates that the veteran had forward flexion to 80 degrees (compared to 50 degrees in the earlier examination), and extension to 10 degrees (compared to 25 degrees earlier). It is generally known that normal back motion, in forward flexion, where one does not have a back disorder is to about a right angle, or around 90 degrees. Because the veteran is currently able to perform forward flexion to 80 degrees and the earlier limitation of motion appears moderate, the Board concludes that severe limitation of motion of the lumbar spine is not shown, and there is no basis for a higher rating under DC 5292. In addition, compensation is anticipated under this code for limitation of motion so a separate compensable rating for arthritis is not warranted. Moreover, DC 5293 provides for a 20 percent rating for moderate symptoms of intervertebral disc syndrome with recurring attacks. However, the evidence does not reflect severe symptoms to warrant a higher rating. In this regard, no examination has ever shown postural abnormality, fixed deformities, or evidence of any palpable abnormality along the musculature of the back. Further, both the February 1997 and April 1999 X-ray reports were essentially normal with respect to the vertebral discs. Similarly, both VA examinations indicate no symptoms consistent with muscle spasms or neurological findings, and there is no clinical evidence to the contrary. Accordingly, there is no evidence of intervertebral disc disease and DC 5293 is not for application. In addition, a higher rating would not be available if the veteran's back disability were rated under DC 5295. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. There is no current evidence of severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending (as noted above, recent range of motion testing was fairly normal), or loss of lateral motion. The record establishes that the veteran has reported back pain; however, taken together the evidence of record fails to establish that the veteran's clinical disability approximates the criteria for more than a 20 percent rating under DC 5295. Accordingly, the Board finds that the schedular criteria for a rating in excess of the currently assigned 20 percent disability evaluation are not met. The Board has also considered the veteran's complaints of pain and functional loss due to pain. However, even considering the standards outlined in DeLuca v. Brown, 8 Vet. App. 202 (1995) and the provisions of 38 C.F.R. § 4.40 et seq., there is no basis on which to assign a higher rating. Significantly, as noted above, there is no basis under the schedular criteria for a rating higher than the currently assigned 20 percent under DCs 5292, 5293, or 5295. The most recent VA joint examination report specifically notes that the functional impairment of the spine is mild to moderate. Accordingly, the Board finds that the functional limitation due to pain is contemplated in the current assigned 20 percent rating and indicia of a higher rating, such as atrophy, muscle wasting, incoordination, weakness, excess fatigability, etc., are not shown. Considering all of the evidence, the veteran's symptoms do not approximate the standard of severe intervertebral disc syndrome, severe limitation of motion of the lumbar spine, or severe lumbosacral strain such as to warrant a disability rating in excess of the 20 percent assigned herein. Although the evidence of record established that he currently has symptoms of a back disability, the currently assigned 20 percent evaluation contemplates the pain and symptomatology consistent with his mechanical low back pain. Furthermore, this rating contemplates the degree of functional limitation due to pain. There is, therefore, no basis for a further increased rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). The Board has considered the veteran's written statements and sworn testimony that his back disability is worse than currently evaluated. Although his statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. II. Entitlement to an Effective Date Earlier than June 14, 1994, for the Assignment of a 30 Percent Evaluation for the Residuals of a Left Achilles Tendon Injury Procedurally, the Board notes that the RO originally granted service connection for the residuals of a left Achilles tendon injury by rating decision dated in August 1992 and a 10 percent evaluation was assigned effective March 1991. Thereafter, the veteran challenged the March 1991 effective date, as well as the disability rating, and maintained that his disability evaluation should have been effective as of June 1989. By Board decision dated in March 1994, the disability rating was increased to 20 percent but the Board did not address the earlier effective date issue at that time. Subsequently, the RO effectuated the 20 percent evaluation by rating decision dated in March 1994 and the effective date remained March 1991; however, a statement of the case on the earlier effective date claim was not issued until April 1994. On June 18, 1994, the veteran filed a claim for an increased rating for his left Achilles tendon disability, which was eventually granted to 30 percent by rating decision dated in September 1995 with an effective date of June 18, 1994. In December 1995, the veteran challenged the June 1994 effective date and maintained that the 30 percent disability rating should have been granted back to April 1, 1991 (essentially the first day of the month following the grant of his original service connection). He contends that the original claim for an earlier effective date was never closed. In a November 1996 personal hearing, the veteran indicated that he was granted a 20 percent disability rating by the Board effective March 1991. He maintained that he opened the claim for a 30 percent rating in November 1992 and that the issue of the effective date was never closed. He noted that he wrote in June 1994 as a follow-up because he was advised that he needed to follow-up on his forms if he did not get a response within a reasonable time. He believed that his 30 percent rating should go back to March 1991, the time he initially filed a claim. He thought the VA system was playing games with percentages and wanted to issue only 10 percent at a time. He remarked that the people acted like the money was coming from their own pockets and rated him according to how they felt that day. The hearing officer noted that he did not have jurisdiction of anything before the Board's decision in March 1994 and could only consider those things after the Board's decision. The veteran noted that the Board decision actually referred the issue of an earlier effective date back to the RO, which he interpreted to mean that the Board was directing the RO to deal with the effective date since the RO was the one who changed it. He again stressed that the 30 percent should have been given to him all along. In an October 1999 hearing before the Board, the veteran testified that his first claim was denied but he was eventually granted a 10 percent disability and had been appealing that decision since. He maintained that there had not been a break in the appeal process. He asserted that the June 1994 effective date should be earlier because he had filed for an earlier effective date at the time he originally filed his claim but was told that it could not be earlier than February 1991 because he did not get out until then. He believed that the effective date should be February 1991. He remarked that because his original claim started in February 1991, that is where his rating should begin. Upon further questioning, the veteran observed that the situation with his Achilles tendon disorder had been essentially the same since service separation. After a careful review of the claims file, the Board finds that the effective date of June 18, 1994, is correct for the grant of a 30 percent disability rating. First, it should be noted that the effective date of an award based on an increase in compensation will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1) (1999) (emphasis added). The effective date may also be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from the date of the increase. 38 C.F.R. § 3.400 (o)(2) (1999). VA medical records may form the basis of an informal claim for increased benefits where a formal claim of service connection has already been allowed. 38 C.F.R. § 3.157 (1999). The threshold question is whether the veteran's initial challenge of an effective date based on the grant of service connection in August 1992 remained open until a 30 percent disability evaluation was assigned in September 1995. Despite the veteran's contentions to the contrary, the Board finds that the claim for an earlier effective date based on the original grant of service connection was not opened at the time a 30 percent rating was assigned. Specifically, in order to perfect an appeal, the veteran must file a VA Form 9 or other correspondence indicating what is being perfected. In this case, the RO assigned an effective date of March 1991 by rating decision dated in August 1992. In September 1992, the veteran indicated his disagreement with the effective date; however, the RO did not issue a Statement of the Case on the earlier effective date issue until April 1994. Nonetheless, the veteran was notified that he had sixty days from the mailing of the Statement of the Case or the remainder of the one year period from the mailing of the rating decision, whichever was later, in which to file a Substantive Appeal. However, it appears to the Board that the veteran failed to timely file a Substantive Appeals as to the issue of the effective date. The next correspondence from the veteran, dated June 18, 1994, addressed the issue of a claim for an increased rating but cannot be construed as a Substantive Appeal on the issue of an earlier effective date. Specifically, the veteran noted that his disability evaluation had been increased to 20 percent but that during the pendency of the appeal, his condition had worsened. He requested that records be obtained from March 1991 "to determine [a] rating increase." Such correspondence cannot be reasonably interpreted to be a Substantive Appeal as the veteran never mentioned a dispute with the March 1991 date, and even suggested that he desired that the records be obtained from March 1991 in support of his claim. In later correspondence, the veteran acknowledged that he never filed a Substantive Appeal at that time because he understood that he could not receive a rating for the time prior to March 1991. Significantly, because he did not file a timely Substantive Appeal to the April 1994 Statement of the Case, the initial claim for an earlier effective date, in effect, became final at that time. The Board notes parenthetically that this was explained to the veteran in a January 1997 Supplemental Statement of the Case. Thereafter, the RO apparently considered the June 1994 correspondence as a claim for an increased rating because the Board had recently granted a 20 percent evaluation by decision dated in March 1994. By rating decision dated in September 1995, the evaluation was increased to 30 percent and made effective to June 18, 1994, the date the veteran filed his claim for an increase. As noted, the earliest date upon which an increase in service connection may be awarded is the date of the receipt of the claim or the earliest date as of which it is factually ascertainable that an increase had occurred if filed within one year. 38 C.F.R. § 3.400 (o) (1999). In this case, there is no factually ascertainable evidence associated with the claims file that an increase in the veteran's disability had occurred within one year prior to the time he filed the claim for an increased rating in June 1994. Specifically, the only medical evidence of treatment within the one year prior to the claim occurred in December 1993, when he was treated for shoulder and neck pain after falling from a motorcycle. There is no other medical evidence associated with the claims file regarding the veteran's Achilles tendon until a VA orthopedic examination in September 1994, several months after he filed the claim for an increased rating. Based, in part, on the findings of the September 1994 VA examination, the disability rating was increased to 30 percent and made effective to June 1994, the date of the reopened claim. Because there is no evidence of an increase in disability within one year of filing the reopened claim, the Board finds that there is no legal basis for an effective date prior to June 18, 1994. The Board also notes that the Board decision dated in March 1994 on the issue of an increased rating essentially precluded the RO from looking prior to March 1994 for evidence of increased disability. As such, there is no legal basis for an effective date earlier than the one assigned. III. Entitlement to an Extension of a Temporary Total Disability Rating for a Period of Convalescence Based on Achilles Tendon Surgery Beyond November 1, 1995, Pursuant to 38 C.F.R. § 4.30 (1999) Under the provisions of 38 C.F.R. § 4.30, a total rating may be granted following hospital discharge, when it is established by report at hospital discharge, that entitlement is warranted effective from the date of hospital admission, and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability results in: (1) surgery necessitating post hospital convalescence; the initial grant of a total rating will be limited to one month with one or two extensions of periods of one month each in exceptional cases; (2) surgery with severe postoperative residuals shown at hospital discharge, 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). Initial grants may be for one, two or three months; (3) immobilization by cast, without surgery, of one major joint or more shown at hospital discharge or performed on an outpatient basis with initial grants of one, two or three months. 38 C.F.R. § 4.30 (1999). The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeal) (the Veterans Claims Court) has determined that the inability to return to any employment would in fact show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). A hospital discharge summary reveals that the veteran was admitted to the hospital on September 19, 1995, with a diagnosis of left Achilles tendonitis after conservative therapy had failed. He underwent a tenolysis of the left Achilles tendon on September 20, 1995. The examiner noted that the veteran was hostile and noncompliant post- operatively, dented and broke his cast in several areas, was quite demanding on the nursing staff, and demonstrated aberrant-like behavior. On September 21, 1995, he was given crutches to ambulate. The veteran subsequently demanded a medical check-up, which he refused to have done as an outpatient. The Medical Service discharge summary noted that the veteran underwent the surgical procedure without complications and that the second physical examination showed cardiomegaly. He was transferred to the Medical Service and discharged on September 22, 1995, in satisfactory and stable condition with instruction to follow-up at the Orthopedic Clinic on October 3, 1995, and the Medical Clinic on October 24, 1995. At the time of discharge, medications included Tylenol #3 and Restoril. In a Rehabilitation consultation note dated October 18, 1995, the examiner noted tenderness at the site but no evidence of discharge or erythema. Whirlpool treatment was ordered daily for 10 days. The veteran was also issued a cane to use for six weeks only and instructed to continue to ambulate but no running or jumping. In an October 23, 1995, physical therapy note, the veteran complained of pain and edema and was limping noticeably. An outpatient treatment note dated October 24, 1995, indicated that the veteran had no complaints. However, it appears that he was still receiving physical therapy on his left lower extremity every other day on November 6, 1995, and it was reported that he had an additional three weeks to go. On November 21, 1995, an orthopedic note showed that the wound was well healed, he had received physical therapy, and he was advised to continue rehabilitation. A December 4, 1995, physical therapy note questioned whether the veteran had exacerbated a back condition and he was still using a cane. By late 1995 and into early 1996, it appears that the focus of the veteran's left leg discomfort shifted to an evaluation of a low back disorder. There is no evidence of post-operative treatment for the left Achilles tendon repair thereafter. Parenthetically, the Board notes that the veteran was subsequently granted service-connection on a secondary basis for a low back disability. In the October 1999 hearing before the Board, the veteran testified that he should be compensated for the time he was actually incapacitated, not the time some Congressmen thought he should be. He stressed that he had already submitted the evidence that showed he should have been given a longer convalescence but could not pinpoint the exact period of time the doctor told him but believed it was in the record. Upon further questioning, the veteran noted that he underwent surgery on his Achilles tendon and all his follow-up took place at the VA hospital in Birmingham. He also remarked that he was in a soft cast for a long time. He noted that he was not working at his current job at the time of the surgery but only had a part-time computer job but could not go back to work. He could not recall whether the doctor told him about returning to work and indicated that the information should be in the file. Based on the evidence above, the Board finds that the veteran is entitled to a temporary total rating for an additional one 1 month period of convalescence, until December 1, 1995, based on a tenolysis of the left Achilles tendon performed in September 1995. Specifically, the Board notes that the initial convalescence period lasted through November 1, 1995; however, outpatient and physical therapy records indicate that the veteran still required a cane for ambulation until the end of November and was also undergoing every-other-day physical therapy treatments until approximately November 28, 1995. By the end of November, an orthopedic note indicated that the wound was well-healed and the veteran was advised to continue rehabilitation. It is not indicated that the frequent physical therapy treatments were to be continued. Based on the above, the Board finds that the veteran continued under post-operative treatment until the end of November; therefore, an additional one month of convalescence, until December 1, 1995, is warranted. However, there is no evidence that any additional periods of convalescence are warranted. First, there is no evidence of further post-operative treatment of the veteran's left Achilles tendon after December 1995. In addition, there is no mention in outpatient treatment records reflecting a need for any extended convalescence time. In fact, at the time the veteran was prescribed a cane in October 1995, the treating physician noted that it was for a period of only six weeks. The doctor's orders suggested that the veteran would be able to ambulate on his own after that time. Furthermore, a review of the medical records throughout 1996 show treatment for low back pain but not for a post-operative left Achilles tendon disorder. Thus, the Board finds that an additional one month period of convalescence, until December 1, 1995, is warranted, but no more. Finally, it appears that the veteran was not employed either prior to or for the period immediately after surgery. Accordingly, there is no basis to grant further convalescence based on an inability to return to work. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 20 percent for low back pain with limitation of motion is denied. Entitlement to an effective date earlier than June 18, 1994, for the assignment of a 30 percent evaluation for the residuals of a left Achilles tendon injury is denied. Entitlement to a temporary total disability rating for a period of convalescence based on Achilles tendon surgery is granted for an additional one month, to December 1, 1995, but no more, pursuant to 38 C.F.R. § 4.30. MICHAEL D. LYON Member, Board of Veterans' Appeals