Citation Nr: 0005003 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-19 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to extension of a temporary total evaluation for convalescence under the provisions of 38 C.F.R. § 4.30 beyond October 31, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from March 1997 to June 1997. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in November 1998 by the Regional Office (RO) in Louisville, Kentucky, of the Department of Veterans Affairs (VA), which granted a temporary total evaluation for convalescence from right knee surgery from April 8, 1998, to May 31, 1998. The veteran filed a notice of disagreement in November 1998. A statement of the case was furnished in November 1998. The veteran filed a substantive appeal in December 1998. A rating decision in June 1999 extended the temporary total evaluation through October 31, 1998. The Board notes that the rating decision in November 1998 assigned an evaluation of 10 percent for a right knee disorder, effective June 1, 1998. The veteran filed a notice of disagreement with that determination in March 1999. A supplemental statement of the case was furnished in June 1999. The veteran did not perfect an appeal on the increased rating issue by filing a substantive appeal. See 38 U.S.C.A. § 7105(a), (d)(3) (West 1991). The rating decision in June 1999 also assigned separate 10 percent evaluations for postoperative right knee meniscus repair and partial right anterior cruciate ligament repair. FINDINGS OF FACT 1. At a personal hearing, the veteran testified that, following right knee surgery in April 1998, he was released by a VA physician to return to work on September 21, 1998. 2. A VA orthopedic clinic record noted that the veteran was released to return to work on October 21, 1998. 3. The veteran did not require convalescence from right knee surgery beyond October 31, 1998. CONCLUSION OF LAW Extension of a temporary total evaluation for convalescence beyond October 31, 1998, is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable regulations provide that a total disability rating (100 percent) will be assigned without regard to whether provisions of the rating schedule when it is established by report of hospital discharge or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. (a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; or (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, or 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. (b) A total rating under this section may be extended as follows: (1) Extensions of 1, 2, or 3 months beyond the initial three months may be made under paragraph (a)(1), (2), or (3) of this section. (2) Extensions of one or more months up to six months beyond the initial six-month period may be made under paragraph (a)(2) or (3) of this section upon approval of the adjudication officer. 38 C.F.R. § 4.30. In the veteran's case, on April 8, 1998, at a VA medical center, he underwent a right knee arthroscopy, during which a partial anterior cruciate ligament tear was repaired. In early June 1998, the veteran began a course of physical therapy, which he completed in mid-October 1998. A VA orthopedic clinic note, dated October 21, 1998, contained the treating physician's finding that the veteran could return to work, using a brace on his right knee. Although VA treatment records show that he was released to return to work on October 21, 1998, the veteran testified at a personal hearing in March 1999 that he had actually been released to return to work on September 21, 1998. At any rate, regardless of which of the two dates is correct, there is no evidence to show any need for convalescence from right knee surgery beyond October 31, 1998, the date assigned by the RO. Although the veteran was to use a brace on his knee when he returned to work, there is nothing to suggest that such use of a brace was the equivalent of therapeutic immobilization of the right knee. In sum, the clear preponderance of the evidence is against a finding that there was a need for convalescence (as contemplated by 38 C.F.R. § 4.30 beyond October 31, 1998. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply in this case. 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals