BVA9500646 DOCKET NO. 93- 06 816 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to a temporary total evaluation following a September 1991 hospitalization (between November 1, 1991 and April 12, 1992) under the provisions of 38 C.F.R. § 4.30 (1993). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from February 1953 to June 1954. This appeal arises from a January 1992 rating decision of the San Francisco, California, Department of Veterans Affairs (VA), Regional Office (RO), which found that entitlement to a temporary total evaluation beyond a one month convalescence period was not warranted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he should be granted a temporary 100 percent disability evaluation between November 1, 1991 and the date of his total left knee replacement in April 1992. He asserts that at the time of his release from the hospital in September 1991, he was unable to bear weight on his left knee and was forced to use Canadian crutches. Therefore, he feels that a temporary total disability evaluation is justified. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, 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 the assignment of a temporary 100 percent disability evaluation. FINDINGS OF FACT The veteran's left knee surgery, performed in September 1991, did not necessitate more than one month of convalescence, and did not result in severe postoperative residuals, application of a body cast, the necessity for house confinement or the prohibition of regular weight bearing. CONCLUSION OF LAW The criteria for the assignment of a temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 from November 1, 1991 to April 12, 1992 for convalescence following surgery to the left knee in September 1991 are not met. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 4.30 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claims which is plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, following discharge from a hospital, a 100 percent rating will be assigned from the date of hospital admission and continued 1, 2, or 3 months from the first day of the month following hospital discharge when it is shown that the veteran underwent surgery necessitating at least one month of convalescence; surgery with 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, or regular weight bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (1993). The evidence of record indicates that the veteran was admitted to a VA hospital on September 24, 1991. At the time of this admission he complained of left knee instability. He had undergone six prior surgeries to this joint. The examination conducted upon admission noted that he had been walking with canes since August 1991 and had recently been issued Canadian crutches. Despite this, he was noted to be very active, working on his ranch and swimming. It was indicated, however, that his gait was not tested due to instability without the use of his canes. He underwent an arthroscopy and a high tibial osteotomy. There were no complications from this surgery; in fact, the veteran was released after 48 hours. It was noted that he would ultimately require a total left knee replacement and such was planned for June 1992. While his physical activities were restricted upon his discharge, it was noted that he could bear weight on the joint as tolerated. There were no other complaints about his knee until February 1992, when he complained of continual left knee pain. The left knee replacement was performed in April 1992. After a careful review of the evidence of record, it is the conclusion of the undersigned that extension of the temporary 100 percent rating under 38 C.F.R. § 4.30 is not warranted. Initially, the evidence currently of record does not indicate that more than one month of convalescence was required. He was released from the hospital two days after the surgery, which was performed without complication. In fact, the evidence suggests that no complaints were presented by the veteran between November 1, 1991 and his first complaint noted in February 1992. Clearly, there is no evidence to suggest that more than the one month of convalescence granted was necessary. Moreover, there is no indication that the veteran suffered from any severe postoperative residuals. There was no indication that he had any unhealed surgical wounds or immobilization of one or more major joints. There was also no evidence presented that he was confined to his home. There was no necessity for the continued use of a wheelchair or crutches as a result of his surgery. While it is noted that the veteran claimed that he was given Canadian crutches following his surgery, the admission examination performed on September 24, 1991 indicated that he was using these crutches prior to his surgery. Finally, regular weight bearing was not prohibited; rather, it was noted that he could bear weight as tolerated. Therefore, after considering all the evidence, there is simply no objective proof that convalescence subsequent to October 31, 1991 was necessary. Based on this evidence, it is concluded that the preponderance of that evidence is against the veteran's claim for entitlement to benefits under 38 C.F.R. § 4.30. ORDER Entitlement to a temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence subsequent to October 31, 1991 following surgery of the left knee is denied. KENNETH R. ANDREWS, JR. 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.