Citation Nr: 0005177 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-13 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for residuals of left knee injury, currently evaluated as 10 percent disabling. 2. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on the need for convalescence following left knee arthroscopy in September 1997. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from December 1990 until May 1993. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of October 1997 from the Winston-Salem, North Carolina Regional Office (RO) which denied an increased rating for residuals of left knee injury, and a temporary total evaluation based on convalescence under 38 C.F.R. § 4.30 for left knee surgery in September 1997. After a review of the evidence of record, the Board is of the opinion that the issue of an increased rating for residuals of left knee injury will be addressed in a REMAND following the ORDER portion of this decision. FINDING OF FACT The clinical evidence reflects that the September 2, 1997 arthroscopic surgery on the veteran's service-connected left knee only required a period of convalescence through September 12, 1997 and did not result in severe post-surgical residuals or immobilization by a cast. CONCLUSION OF LAW The requirements for a temporary total rating based on convalescence for left knee arthroscopy performed on September 2, 1997 have not been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he should receive a temporary total disability rating for purposes of convalescence following arthroscopic surgery of the left knee on September 2, 1997. The representative requests that the case be remanded for a medical opinion as to period of convalescence which was required in the veteran's case. Under 38 C.F.R. § 4.30, a temporary total disability evaluation (100 percent) will be assigned without regard to other provisions of the VA's Schedule for Rating Disabilities when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted for the following: (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, 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. Service connection for a left knee disorder was established by rating action dated in June 1995. VA outpatient clinic notes reflect a pre-operative report dated September 1, 1997 indicating that the veteran was experiencing symptoms which included intermittent pain, positive effusion, locking, clicking and occasional instability of the left knee. It was noted that arthroscopic surgery would be performed the following day and that if an anterior cruciate ligament (ACL) tear was found, that repair of such would be performed. A clinical note dated the day of surgery, September 2, 1997, recorded that the post-operative diagnosis was meniscal wear, left knee, and that no ACL tear was shown. The appellant was seen in follow-up on September 12, 1997, whereupon it was noted that left knee arthroscopy on September 2, 1997 had revealed no surgical lesions. It was reported that the veteran indicated that the knee was a little better. No signs of infection were observed and the appellant was taken off crutches. It was recorded that he could return to work. On VA examination on September 15, 1997, it was indicated that the veteran was still in the recovery stage, and had not worked since his operation two weeks before. Physical examination at that time was remarkable for left knee swelling and flexion restricted to 90 degrees. He limped on the left leg and wore a knee brace. In December 1997, it was noted that he was not engaging in as much walking in his new job, of two months, which had helped his symptoms. He had left knee pain and tenderness, and possible ligament laxity. Analysis Under 38 C.F.R. § 4.30, at least one month of postoperative convalescence is required for the assignment of a temporary 100 percent evaluation. The Board observes in this instance that the appellant underwent exploratory arthroscopic surgery on September 2, 1997 and did not require an additional operation because an ACL tear was not found. (The record indicates that this surgery was canceled.) Follow-up VA outpatient clinic notes dated on September 12, 1997 (a Friday) indicate that he was released to return to work. While the veteran reported on VA examination on September 15, 1997 (a Monday) that he was still not working, there is no indication in the record that his examining physicians extended his period of convalescence. Additionally, there is no evidence of severe postoperative residuals, such as stumps of recent amputations, 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); or immobilization by cast, without surgery, of one major joint or more. There is no evidence in the VA outpatient treatment records suggesting that the veteran would likely experience severe postoperative residuals. Further, none of the follow-up reports suggests that the period of healing time exceeded the September 12, 1997 date or that the veteran experienced any severe postoperative residuals in the months following the procedure. Therefore, the requirements for a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on the need for convalescence following left knee arthroscopy in September 1997 have not been demonstrated. The Board thus finds that the clinical record is adequate for disposition of the issue on appeal and that a remand for further development is not warranted. Although the veteran now asserts that the extent of postoperative convalescence was such as to warrant a temporary total evaluation, he is not shown to be competent to offer a medical opinion as to the required length of a period of convalescence following his surgery. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). While it is appears that he continued to experience some symptoms attendant to his surgery after September 12, 1997, the central question in this case is whether his operation did in fact require a month or more of postoperative convalescence or whether he was left with any severe postoperative residuals. The Board has considered all of the evidence in this regard and concludes that it did not. The most significant postoperative clinical findings were limited to pain, tenderness and swelling with restriction of flexion, productive of no more than a limp on ambulation requiring a knee brace. Therefore, the Board concludes that the preponderance of the evidence is against the veteran's claim for a temporary total rating for status post left knee arthroscopic surgery under the provisions of 38 C.F.R. § 4.30 (1999). Accordingly, the veteran's appeal is denied. ORDER A temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on the need for convalescence following left knee arthroscopy in September 1997 is denied. REMAND A review of the record discloses that the veteran most recently underwent a VA examination for compensation and pension purposes in September 1997. At that time, he was observed to still have some swelling about the knee and flexion was restricted to 90 degrees. It was reported that he was unable to perform a squat or walk adequately on his toes. A diagnosis of internal derangement of the left knee, status post operative, was rendered, but the examiner commented that further discussion would be speculative in terms of the tenets of DeLuca v. Brown, 8 Vet. App. 202, 206- 7 (1995), pertaining to pain contributing to functional loss. The Board is thus of the opinion that an orthopedic examination should be scheduled in order to ascertain the extent of current left knee disability. Additionally, VA outpatient clinic records dated in December 1997 indicate that veteran was scheduled for additional evaluation in March 1998. It appears that no clinical records subsequent to December 1997 have been requested or secured. Under the circumstances, the case is REMANDED to the RO for the following actions: 1. Any and all of the veteran's VA outpatient clinic records dating from January 1998 should be requested and associated with the claims folder. 2. The appellant should be afforded an examination by a VA specialist in orthopedics to determine the extent of any and all current disability associated with his left knee. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The claims folder and a copy of this REMAND should be made available to the examiner in connection with the study of this case. The results of the physical examination and all clinical/diagnostic testing must be fully delineated and appropriate diagnoses rendered. In accordance with DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995), the examination report with respect to the left knee must identify any weakened movement, including weakened movement against varying resistance, excess fatigability upon use, incoordination, painful motion, and pain with use, and provide an opinion as to how those factors result in limitation of function. If the veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during episodes of flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact should be so stated. The examination report should be returned in a legible narrative format. 3. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report in order that he may make an informed decision regarding his participation in the scheduled examination. 4. The RO should review the examination report to determine compliance with this REMAND. If deficient in any manner, the report should be returned, along with the claims file, for immediate corrective action. 5. After completing any necessary development deemed appropriate in addition to that specified above, the RO should readjudicate the veteran's increased rating claim with application of DeLuca, as well as to determine whether VAGCOPPREC 9-98 (Aug. 14, 1998) is applicable. If the disposition remains unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case and afford them the opportunity to respond. The case should then be returned to the Board for further appellate consideration. The purpose of this remand is to develop a complete record and ensure due process. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition of the remaining issue on appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. U. R. POWELL Member, Board of Veterans' Appeals