Citation Nr: 0006313 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 97-13 396A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an extension of a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 for convalescence following foot surgery performed in December 1993. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from March 1977 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) regional office (RO) in Houston, Texas, which, in pertinent part, denied the benefit sought on appeal. The claims file is now under the jurisdiction of the RO in New Orleans, Louisiana. In April 1998, the veteran testified at a video-conference hearing before the undersigned Member of the Board. The case was remanded by the Board in August 1998 for further development. The veteran has been granted several periods of temporary total evaluations on the basis of the need for convalescence. A preliminary review of the one issue on appeal before the Board is in order, given the confusing array of communications and rating decisions/statements of the case in this claim. The periods of temporary total evaluation for convalescence granted by the RO are from March 31 to May 1, 1993; from December 29, 1993, to February 1, 1994; from February 10 to April 1, 1995; and from July 28 to September 1, 1995. The veteran has, at various times, contested one or more of these temporary total evaluation periods. However, at his hearing before the undersigned in April 1998, he and his representative limited his argument and the evidence presented to entitlement to extension of a temporary total evaluation following the December 1993 surgery. The veteran confirmed that he was not offering testimony or seeking extension of temporary total evaluations from any other surgery. The Board need not consider, therefore, whether the veteran appealed from any other grant of temporary total evaluation for convalescence. To the extent that the veteran may have been considered to have appealed any other temporary total evaluation, he withdrew such appeals in his April 1998 hearing before the Board. In March 2000, the Board received a packet of additional evidence from the veteran with waiver of RO jurisdiction. By submission of this material, the veteran appears to be asserting a claim of entitlement to an increased evaluation for his secondary psychiatric disability. This issue is not before the Board and is referred to the regional office for appropriate consideration. FINDINGS OF FACT 1. Sufficient evidence for an equitable disposition of the appeal has been obtained. 2. The veteran had outpatient surgery on both feet in December 1993 for hammertoes of the fifth digits. 3. One month following surgery the veteran was reported as doing well, with only minimal edema in his digits. 4. There is no evidence that the veteran would have been unable to perform sedentary work as of February 1, 1994, because of convalescence from December 1993 surgery. CONCLUSION OF LAW The criteria for an extension of a temporary total evaluation beyond January 31, 1994, for convalescence under the provisions of 38 C.F.R. § 4.30 have not been met. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The December 1996 rating which denied an extension of a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 for convalescence following foot surgery, also denied service connection for depression as secondary to the veteran's bilateral foot disorder and denied a disability rating in excess of 10 percent for his bilateral foot disorder. The veteran perfected his appeal to the Board as to these issues. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.302 (1999). During the pendency of this appeal, a rating decision of January 1998 granted service connection for depression and assigned a 30 percent disability rating for the disorder. Since the veteran has not specifically indicated disagreement with that decision, this issue is no longer before the Board. The issue of the amount of compensation for a service-connected disability is a different issue than entitlement to service connection for that disability, and a second Notice of Disagreement must be filed in order to initiate appellate review. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, the January 1998 decision granted a 10 percent disability rating for each foot, rather than an overall 10 percent rating for a bilateral foot disorder. At his hearing in April 1998, the veteran stated that he wished to withdraw this issue from his appeal. According to the veteran's medical history, he developed calluses on both feet, for which he received treatment, while in military service during the late 1970s. Despite these foot problems, he began working as a letter carrier for the United States Postal Service in 1985. Subsequently, he was treated by Neil A. Burrell, D.P.M., for palliation of his corns on both fifth digits, medial aspect of both fifth digits and the lateral aspect of the right fifth digit. In March 1993, he underwent outpatient resection arthroplasty of the fifth toes bilaterally. In early December 1993, the areas were debrided, and Dr. Burrell performed bilateral arthroplasty again in December 1993, on an outpatient basis. The operation in December 1993, which was on an outpatient basis, noted that resectional arthroplasty had been performed on the fifth digit of the proximal interphalangeal joint of both the right and the left foot and that operative procedures were without incident. Dr. Burrell's office notes, dated in January 1994, reveal that five days after the second operation, the bilateral incisional areas were dry and intact and there was no drainage or sign of infection. In mid January, the veteran was reported as doing fine with no complaints. The sutures were removed, and x-rays looked good. On his next appointment, the veteran was healing well. The incision areas were without drainage, although a corn had appeared on right fifth digit. Ten days later, Dr. Burrell reported that the veteran was still doing well, with only minimal edema in his digits. February 1994 clinical notes by Dr. Burrell state that the veteran continued to do well, although he still had some pain and slight swelling. He wanted his supervisors at the Post Office to be informed as to just what he could and could not do. Dr. Burrell observed that the veteran planned to go to New Orleans to the Mardi Gras, but would be staying at a hotel and not doing any walking along Bourbon Street. Three weeks later, Dr. Burrell reported again that the veteran was doing fine, although stating that his toes were still tender. There was an area of hyperkeratosis on the right foot which was falling off on its own. In mid April 1994 and on a follow-up visit, the veteran complained of pain bilaterally in the 5th digits, especially in his left fifth digit. He had been able to wear tennis shoes a size larger than his regular shoes for a little while. Outpatient records from Dr. Burrell toward the end of April 1994 recorded renewed complaints of pain in both fifth digits. The veteran said that he was not able to wear shoes for more than about 45 minutes at a time. Examination showed minimal edema in the digits, but some areas of hyperkeratosis in the fourth interspace bilaterally, which were debrided without any complications. A June 1994 letter from Dr. Burrell stated that the veteran was currently under treatment for heloma molle of the fourth interspaces bilaterally, the right worse than left. [A heloma is a corn or callosity on the hand or foot; heloma molle is a soft corn. Dorland's Illustrated Medical Dictionary, 27th Edition, W.B. Saunders Company, Harcourt Brace Jovanovich, Inc., 739-40 (1988).] Dr. Burrell added that he had first seen the veteran in March 1993 with the same diagnosis. After conservative therapy failed, the veteran had undergone surgical treatment. He had been healing uneventfully from this surgery when the heloma molle reappeared. The same procedure thus had to be performed a second time. At this point, a third surgery was considered because the heloma molle had again reappeared, and the veteran complained of a lot of pain when on his feet for a long time or when doing a lot of walking, especially over uneven surfaces. A subsequent letter, also in June 1994, from Dr. Burrell stated that the veteran continued to have soft corns between his digits, although not as severe as they had been initially. Dr. Burrell opined, based both on clinical presentation and the subjective complaints, that the veteran was certainly more than healed enough to sit at a desk and perform duties in a sitting or limited standing position, although not able to perform a walking job at the Post Office. He released the veteran to work with restricted activities, to include no walking or standing for long periods of time, and with permission to wear comfortable shoes. A notice from United States Post Office to veteran, dated in August 1994, instructed him to report to work on August 15, 1994, informing him that failure to respond to this notice might result in being charged with Absence Without Leave. Should this charge be proven, he could be subjected to disciplinary action with steps taken to remove him from the Postal Service. An August 1994 surgical consultation report by W. Grant Braly, M.D., of the Fondren Orthopedic Group disclosed that the veteran presented with bilateral recurrent soft corns, which were quite uncomfortable. The veteran complained that he could not wear closed shoes and was thus unable to resume his duties as a letter carrier for the Postal Service. Dr. Braly commented that the veteran's problem had undoubtedly been exacerbated by his type of employment. In his judgment, however, the veteran was capable of working successfully in a primarily sedentary capacity. In a letter to VA, dated in October 1995, Dr. Burrell stated that the veteran had been under his medical care from December 1993 through August 1994. During that time he had been convalescing from foot surgery on both feet. A Disability Evaluation Report, received in March 1997, from the United States Department of Labor, includes extensive evaluation and testing of the veteran in 1995 and 1996. A private physician, Frank A. Luckay, M.D., associated with the Beaumont Disability Evaluation Clinic, stated that he had performed a record review for a complete medical history. The veteran had been injured while working at the Post Office on March 8, 1993, and underwent the first operation in March 1993. After the first operation, he was unable to carry mail, but worked at a desk. He did not return to work from his second surgery until August 1994, again at sedentary duty, until he left permanently in February 1995. In April 1998, the veteran testified at a video-conferenced hearing before the undersigned Member of the Board. He took issue with prior RO decisions, alleging that he does, in fact, meet the requirements under 38 C.F.R. § 4.30 (1999) for an extension of a temporary total evaluation to August 15, 1994 following his surgery in December 1993. He claimed to have been incapacitated to such an extent that he had been totally unable to work due to a limited ability to walk, inability to stand up in the shower, and inability to exercise. It was not until August 1994, he maintained, that he was finally able to return to work in a sedentary position at the United States Postal Service. He confirmed that, during the time frame at issue in this case, all treatment for the bilateral foot disorder had been by Dr. Burrell. II. Legal Analysis A claim for a temporary total convalescent rating is defined as a claim for increase, as it is an application for an increase in the rate of a benefit being paid under a current award. 38 C.F.R. § 3.160(f) (1999). Accordingly, the claim is well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Since VA has obtained all relevant service and private medical records and the veteran has been afforded a hearing before a Member of the Board, the Board is satisfied that all relevant and available facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. A temporary total rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted, effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. Such total rating will be followed by appropriate schedular evaluations. 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; (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 being prohibited; or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a) (1999). Under 38 C.F.R. § 4.30 (b), a total rating of one, two, or three months beyond the initial three months may be extended under any of the three conditions above. Extensions of one or more months up to six months beyond the initial six months period may be made upon approval of the Adjudication Officer. In considering the three conditions for a temporary total evaluation, the veteran clearly has not met the criteria for the last two conditions. He has not suffered from incompletely-healed surgical wounds, recent amputation stumps, or major joint therapeutic immobilization. He at no time wore a body cast, was confined to his house, or was required to use a wheelchair or crutches for a continued period of time. He was not required to be immobilized by casting. The RO granted temporary and total benefits under 38 C.F.R. § 4.30 for a period of one month following the December 29, 1993, surgery. By January 31, 1994, the final date of the award period, the veteran was reported as doing well, with only minimal edema in his digits. By February, he had apparently recovered sufficiently from his surgery to be thinking of going back to work at the Post Office and to travel to New Orleans for Mardi Gras. In June 1994, he complained to Dr. Burrell that his feet were painful when he stood for a long time or did a lot of walking over uneven surfaces. Moreover, in June 1994, Dr. Burrell released the veteran for work with restricted activities. The veteran has provided no medical evidence that by January 31, 1994, he had not recovered sufficiently from the effects of the operation to work at a sedentary job, as he had done following the March 1993 operation. In fact, he was sufficiently recovered to plan a trip to New Orleans. The fact that the veteran was still under the care of Dr. Burrell until August 1984 for occasional outpatient treatment for recurrence of the corns and difficulty in finding comfortable shoes, indicates merely that the condition persisted despite the operation, but has no bearing on the issue of the need for continued convalescence from the operation itself. Moreover, the veteran's stated symptoms of pain when standing or walking for long periods of time, inability to stand while showering, and inability to exercise, while undoubtedly significant to the veteran, have no bearing on the issue of whether he had required a period of convalescence from surgery. The recurrence of the veteran's corns is a condition which is separate and distinct from the issue of convalescence from December 1993 operation, is not an effect of the operation, and provides no indication of delayed recuperation. Accordingly, the preponderance of the evidence is against entitlement to an extension of a temporary total evaluation for convalescence under the provisions of 38 C.F.R. § 4.30 following foot surgery in December 1993. The claim must, therefore, be denied. ORDER Entitlement to an extension of a temporary total evaluation beyond January 31, 1994, under the provisions of 38 C.F.R. § 4.30 based on convalescence following foot surgery performed in December 1993 is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals