BVA9507877 DOCKET NO. 91-43 764 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an effective date earlier than September 18, 1989, for service connection for a right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30 (1994). 2. Entitlement to an extension beyond January 1, 1990, for a convalescent rating pursuant to 38 C.F.R. § 4.30 (1994). REPRESENTATION Appellant represented by: C. R. Mellott, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from October 1978 to October 1982. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This case was last before the Board of Veterans' Appeals (Board) in October 1993, at which time it was remanded for further development. Following completion of the requested development, a rating decision entered in December 1994 granted an extension of a convalescent rating pursuant to 38 C.F.R. § 4.30 from November 30, 1989, to January 1, 1990, and a Supplemental Statement of the Case was issued the same month. The appeal was returned to and redocketed at the Board in March 1995. The case is now ready for appellate review. Included for appeal when this case was last before the Board in October 1993 was the issue of entitlement to an increased rating for the veteran's service-connected right knee disability, then rated as 20 percent disabling. Thereafter, the December 1994 rating decision referred to above, in addition to granting the above-addressed extension of a convalescent rating, also increased the evaluation for the veteran's service-connected right knee disability from 20 percent disabling to 30 percent disabling. Inasmuch as the veteran, in his June 1991 substantive appeal as well as in testimony at his February 1992 hearing, specifically indicated that he sought a 30 percent rating for his service-connected right knee disability, the Board regards the recent award of a 30 percent rating for such disability as a complete grant, relative to such issue, of the benefit sought on appeal. Accordingly, such issue is no longer before the Board and the appeal is limited to consideration of the issues listed on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL With respect to the veteran's claim of entitlement to an effective date earlier than September 18, 1989, for service connection for a right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30, the veteran states that, notwithstanding that he underwent reconstructive surgery on the right knee in September 1989, he underwent arthroscopic surgery involving such knee on June 30, 1989. He contends that he is, therefore, entitled to service connection for his right knee disability from the date of the prior arthroscopic surgery; and that, inasmuch as he was continuously in need of post surgical convalescence from the date of such surgery through the time of the subsequent reconstructive surgery in September 1989, he is entitled to an effective date for his convalescent rating based on the June 1989 arthroscopic surgery rather than the subsequent reconstructive surgery. Concerning his claim for an extension beyond January 1, 1990, for a convalescent rating pursuant to 38 C.F.R. § 4.30, the veteran asserts that subsequent to undergoing reconstructive surgery on his right knee in September 1989, he was in need of post surgical convalescence for many months and unable to return to work until August 1990. He contends that he is, therefore, entitled to an extension of his convalescent rating to, at a minimum, March 31, 1990, pursuant to 38 C.F.R. § 4.30(b). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an effective date earlier than September 18, 1989, for service connection for a right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30 as well as his claim for an extension beyond January 1, 1990, for a convalescent rating pursuant to 38 C.F.R. § 4.30. FINDINGS OF FACT 1. Service connection for right knee disability was denied in a February 1983 rating decision, and a timely appeal was not initiated. 2. The veteran's reopened claim for service connection for a right knee disability was received by VA on September 18, 1989. 3. Service connection for disability of the veteran's right knee was not in effect at the time of arthroscopic surgery performed in June 1989. 4. It is not shown that the veteran required post surgical convalescence beyond January 1, 1990. CONCLUSIONS OF LAW 1. The requirements for an effective date prior to September 18, 1989, for service connection for right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30 have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 1991); 38 C.F.R. §§ 3.400, 4.30 (1994). 2. The requirements for an extension of a convalescent rating beyond January 1, 1990, have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that each claim on appeal is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that these claims are plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). I. Earlier Effective Date Under the law, in the context of this case, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In asserting entitlement to an effective date earlier than September 18, 1989, for service connection for a right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30, the veteran contends that the effective date for such benefits should be June 30, 1989, on which date he underwent arthroscopic surgery involving his right knee, rather than the time of his September 1989 right knee reconstructive surgery. While the foregoing contention is acknowledged, the Board would point out that the currently assigned effective date for service connection for right knee disability, September 18, 1989, is based on the date of receipt of the veteran's reopened claim for such benefit rather than his having undergone right knee reconstructive surgery in September 1989. As pertinent to the foregoing characterization of the claim for service connection for right knee disability received on September 18, 1989, as a "reopened" claim, the Board notes that service connection for right knee disability was denied in a February 1983 rating decision which became final in the absence of receipt of a notice of disagreement within one year of the veteran's notification of such denial. See 38 U.S.C.A. § 7105 (West 1991). Thereafter, the next item submitted to the RO was the veteran's reopened claim for service connection for a right knee disability, consisting of a statement signed by the veteran and accompanying clinical records including the report of his June 1989 right knee arthroscopic surgery performed at a non-VA facility, which was received on September 18, 1989. Such date is, pursuant to the law and regulations set forth above, and notwithstanding that the documentation comprising the claim included a report pertaining to right knee surgery performed prior to the date the reopened claim was received, the proper effective date for a grant of service connection, effectuated in a rating decision entered in February 1990, for such disability. Accordingly, entitlement to an effective date for service connection for a right knee disability prior to September 18, 1989, is not established. 38 U.S.C.A. §§ 5110, 5107; 38 C.F.R. § 3.400. Finally, since an effective date for service connection for the veteran's right knee disability prior to September 18, 1989, is not established in light of the reasoning advanced above, and inasmuch as entitlement to a convalescent rating pursuant to 38 C.F.R. § 4.30 is specifically predicated on treatment rendered in response to a service-connected disability, see 38 C.F.R. § 4.30(a), the Board concludes that an effective date for a convalescent rating prior to September 18, 1989, the date assigned when such benefit was granted in a rating decision entered in March 1990, is similarly not established. 38 C.F.R. § 4.30. II. Extension of Convalescence Rating Pursuant to 38 C.F.R. § 4.30, a total disability rating (convalescent rating based on hospitalization) is assignable under paragraph (a) (1), (2) or (3) of 38 C.F.R. § 4.30, effective the date of hospital admission and continuing for a period of 1, 2 or 3 months from the first day of the month following such hospital discharge. Pursuant to 38 C.F.R. § 4.30(a)(1), such convalescent rating will be assigned if the surgery necessitated at least one month of convalescence; pursuant to 38 C.F.R. § 4.30(a)(2), such convalescent rating will be assigned if treatment of a service-connected disability resulted in 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; pursuant to 38 C.F.R. § 4.30(a)(3), such convalescent rating will be assigned if treatment of a service- connected disability resulted in immobilization by cast, without surgery, of one major joint or more. Pursuant to 38 C.F.R. § 4.30(b)(1), in the context of this case, convalescent rating extensions of 1, 2 or 3 months beyond the initial three months may be made under paragraph (a)(1), (2) or (3), as set forth above. The veteran asserts that he was in need of post surgical convalescence for many months after undergoing reconstructive surgery on his right knee in September 1989 and that he was unable to return to work until August 1990. He contends that he is, therefore, entitled to an extension of his convalescent rating to, at a minimum, the end of March 1990, pursuant to 38 C.F.R. § 4.30(b). The record reflects that, on September 15, 1989, the veteran underwent reconstructive surgery on his right knee in response to a preoperative diagnosis of tear of the anterior cruciate ligament. When examined by VA in late December 1989, the veteran, who was wearing a metallic brace over his right knee and clothing, was noted to walk without a limp and with no apparent acute pain. He complained of tenderness over the medial joint space. He was able to squat to an angle of 90 degrees, and examination of the right knee revealed no swelling, deformity or abnormality. Surgical scars were described as well healed, and nontender. There was no evidence of effusion, McMurray's was negative, and flexion and extension of the right knee were noted to be "complete." There was a click at the end of extension and mild atrophy of the lower third of the right thigh. Based on the report of the foregoing VA examination, a convalescent rating to November 30, 1989, was granted pursuant to 38 C.F.R. § 4.30 in a rating decision entered in March 1990. Following receipt of clinical records including reports reflecting physical therapy in which the veteran was engaged from September 1989 to September 1990, the veteran's convalescent rating was extended to January 1, 1990, in a rating decision entered in December 1994. In considering the veteran's claim for an extension of his convalescent rating beyond January 1, 1990, the Board would point out that the record contains a number of documents bearing on the veteran's inability, due to physical limitation related to his September 1989 right knee reconstructive surgery, to resume working at his place of employment, to which he is not shown to have actually returned until August 1990. While the Board has considered these submissions, to include a statement dated in May 1990 from the surgeon who performed the veteran's September 1989 reconstructive surgery and wherein the physician relates that the veteran was unable to perform his regular occupation at that time, the Board would point out that the point in time at which the veteran had regained his ability to resume his employment bears no necessary relationship to the determination of the proper duration of his convalescent rating. Rather, such determination is dispositively predicated on the precise clinical criteria contained in the pertinent provisions of 38 C.F.R. § 4.30 articulated above. With respect to the question of whether an extension of the veteran's convalescent rating beyond January 1, 1990, is warranted, the Board finds it significant that a late January 1990 treatment note pertaining to the veteran's physical therapy regimen reflects that, except for the veteran's restrengthening objective for his right leg, his overall progress in recovering from the September 1989 reconstructive surgery was described as "excellent." On evaluating such assessment in conjunction with the findings on the December 1989 VA examination set forth above, to include apparently unrestricted motion for the right knee and an ability to walk without limping, and in the absence of evidence documenting the presence of any factor on which extension of a convalescent rating pursuant to 38 C.F.R. § 4.30(b)(1) might be predicated, such as additional surgery requiring convalescence, immobilization of the right knee joint or the necessity of use of crutches (which the veteran discontinued using in late December 1989 according to his testimony at his February 1992 hearing), the Board is of the opinion that the preponderance of the evidence is against the veteran's claim for an extension of a convalescent rating beyond January 1, 1990. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.30. ORDER An effective date earlier than September 18, 1989, for service connection for right knee disability and for a convalescent rating pursuant to 38 C.F.R. § 4.30 is denied. An extension beyond January 1, 1990, for a convalescent rating pursuant to 38 C.F.R. § 4.30 is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.