Citation Nr: 0006718 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-18 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to extension beyond June 30, 1998, of a temporary total evaluation granted for convalescence following May 1998 outpatient surgical treatment of a service-connected right elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from November 1948 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted a temporary total evaluation for convalescence following a May 1998 outpatient surgery for a service-connected right elbow disability, and assigned the temporary total rating from May 21, 1998 to July 1, 1998. FINDINGS OF FACT 1. The veteran's right elbow was free of edema and tenderness, and he had resumed general pre-surgical activities as of August 17, 1998. 2. For the purposes of a temporary total evaluation, the veteran's convalescence from a May 1998 right elbow surgery terminated no later than August 31, 1998, although further right elbow surgical treatment was required in May 1999. CONCLUSION OF LAW Resolving doubt in the veteran's favor, the criteria for extension through August 31, 1998, of a temporary total evaluation granted for convalescence following May 1998 outpatient surgical treatment of service-connected right elbow disability have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran underwent outpatient surgical treatment of a service-connected right elbow disability on May 21, 1998. He has been granted a temporary total disability evaluation for a period of convalescence from May 21, 1998 to June 30, 1998. The veteran contends that he is entitled to a total temporary evaluation beyond the assigned date of June 30, 1998. That claim, an allegation that a service-connected disability is of greater severity than the current temporary total disability reflects, is sufficient to establish a well- grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). A temporary total rating (TTR), a 100 percent evaluation, may be assigned when it is established that at least one month of convalescence is necessitated by surgery for a service- connected disability, or if surgery resulted in severe postoperative residuals, such as incompletely healed surgical wounds, immobilization of a major joint, application of a body cast, or the necessity for house confinement. 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). Treatment records dated in early May 1998, prior to the veteran's surgery, reflect that the veteran was complaining of worsening right arm pain, an underlying dull ache in the right elbow, and intermittent catching and locking with sharp pain. The medical assessment was that the veteran's right elbow pain was secondary to underlying degenerative joint disease and also probably loose bodies. The physician indicated that the treatment choices were total elbow replacement or debridement. The veteran underwent open debridement of the right elbow on May 21, 1998. A June 1998 treatment note disclosed that, at 10 days status post right elbow debridement, the veteran was healing well and had range of motion from 45 degrees to 120 degrees. In July 1998, the clinical notes reflect that the veteran was to be treated in physical therapy from early July to early August. Clinical records of nine physical therapy treatment sessions during July and August 1998 are associated with the claims file. The initial physical therapy evaluation, in early July 1998, reflected that the veteran had increased swelling and decreased strength in the right elbow postoperatively, which was assessed as treatable through physical therapy modalities. The physical therapy assessment indicated, however, that, due to the severity of the underlying right elbow condition, the veteran's range of right elbow motion was not expected to improve with physical therapy. In a statement submitted in July 1998, the veteran alleged that he was not really improved, that the pain in his right elbow remained constant and severe, and was so severe that he was unable to lift and hold a cup of coffee in his right hand. He also stated that his ability to extend and flex his right arm was diminished. On VA examination conducted in early August 1998, the veteran reported sharp pain with elbow movement. Although right- handed, the veteran used his left hand for activities of daily living. The veteran was able to flex the right elbow to 90 degrees and to extend it to 30 degrees, both passively and actively. Pronation was to 10 degrees, supination to 45 degrees. There was tenderness along the joint space, as well as swelling and heat in the right elbow. Physical therapy treatment records in mid-July reflected that swelling in the right elbow had decreased. In early August 1998, the veteran reported that he had been able to increase his activity at home and had resumed all activities of daily living. The record of the August 17, 1998, physical therapy session reflects that the veteran's right elbow was free of edema and was of normal temperature. The note included an opinion that the veteran's right elbow was "pretty much status quo." That note reflects that the veteran was scheduled for one more physical therapy appointment, the following week, but no additional physical therapy notes are associated with the claim file. Treatment records dated in September 1998 reflect a medical assessment that the veteran had received significant benefit from physical therapy, but continued to complain of right elbow tenderness and clicking. The assessment was that the veteran's degenerative joint disease of multiple sites was stable. The medical evidence from September 1998 through May 1999 is devoid of any notation that the veteran had any swelling, drainage, incomplete healing, or any other problem at the May 1998 surgical site. An October 1998 treatment note indicated that the veteran was complaining of worsening pain and decreased range of motion following the surgery. An October 1998 physical therapy note reflects that the veteran was provided a different type of elbow brace. Treatment notes thereafter reflect continued and increased complaints. A February 1999 treatment reflects that a night volar elbow splint was provided to assist the veteran to rest the ulnar nerve. A treatment note later that same month disclosed that use of the nocturnal elbow splint was not effective to decrease elbow pain, and the veteran reported that it increased shoulder pain. Further records reflect that the veteran underwent right elbow replacement surgery in May 1999. The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the requirement of "convalescence" for purposes of 38 C.F.R. § 4.30(a)(1) as separate from the criteria of in-home recovery or immobilization or severe postoperative residuals set out in section 4.30(a)(2) or (a)(3). Felden v. West, 11 Vet. App. 427, 430 (1998). A determination about the length of any period of convalescence required following the surgical procedure in this case is a finding of fact. Id.; see James v. Brown, 7 Vet. App. 495, 497 (1995) (applying the "clearly erroneous" standard of review to a Board determination about individual unemployability); Francisco v. Brown, 7 Vet. App. 55, 57 (1994) (holding that determinations about degree of impairment are findings of fact). The veteran contends, in essence, that he was not completely recovered for several months following his right elbow surgery, and that, in fact, he did not recover fully from that surgery, eventually requiring a right elbow replacement. In essence, the veteran contends that his convalescent period was terminated only by right elbow replacement in May 1999. The veteran's assertion that he was not fully recovered for some time is credible. The Board notes in particular that, although the veteran was no longer required to immobilize his right elbow after June 30, 1998, and was no longer required to wear a dressing or bandage over the operative site, physical therapy was not instituted until early July 1998. It appears that there was a medical determination that rehabilitative physical therapy was not medically appropriate prior to July 1998. The Board finds that such a determination implies a medical judgment that further convalescence is needed. The Board notes that, in this case, the veteran's physical therapy treatment was a necessary part of his convalescence. The Board also notes that, as late as early August 1998, at the time of a VA examination, the veteran had tenderness and swelling at the operative site. The evidence reflects that edema and warmth at the operative site had resolved, and the veteran had resumed his general pre-surgical activities as of the physical therapy session on August 17, 1998. Resolving doubt in the veteran's favor, it appears to the Board that the veteran's convalescence, for purposes of a temporary total evaluation, extended well into August 1998. Accordingly, extension of the total convalescence rating through August 31, 1998 is appropriate under the provisions of 38 C.F.R. § 4.30. However, the Board finds that an extension of a temporary total evaluation for convalescence beyond that time is not appropriate. In particular, the Board notes that August 17, 1998 is the date of the last physical therapy treatment session of record. The Board further notes that the medical evidence reflects that the veteran's right elbow treatment following August 17, 1998 was essentially equivalent to his pre-surgical treatment in frequency, supporting a finding that convalescence was essentially complete. The veteran's assertion that his right elbow did not improve following the May 1998 surgery is certainly credible, and is factually supported by the record, in light of his return to surgery in May 1999 for a more radical surgery, a right elbow replacement. However, the Board does not agree that the veteran's convalescence continued until the May 1999 surgery was performed. The veteran alleges, in essence, that the May 1999 surgery would not have been required if he had completely recovered from the May 1998 surgery, so the entire period from May 1998 to May 1999 should be considered convalescence. However, the medical evidence establishes that the May 1998 debridement of the right elbow and removal of loose bodies was a conservative attempt to avoid total elbow replacement. The clinical records reflect that it was known, prior to the May 1998 surgery, that the surgery might not be effective to arrest deterioration of the veteran's right elbow, and that a right elbow replacement might be required if deterioration continued. The evidence that the May 1998 operative procedure was required to remove loose bodies from the right elbow joint reflects that deterioration of the joint preceded that surgery. The fact that deterioration of the joint continued after the May 1998 surgical procedure does not convert the ongoing deterioration of the joint to a post- surgical residual reflecting a need for continued convalescence. The medical evidence clearly establishes that the veteran's physicians continued to try various types of treatment, including several types of splints, after the May 1998 surgical procedure. However, there is no medical evidence or opinion that these were required for continued healing of post-surgical residuals. Certainly, the veteran continued to require treatment of his right elbow disability. However, there is no evidence of symptoms or disability not encompassed within regular schedular criteria after August 1998. This finding, as well, supports the Board's conclusion that the period of convalescence, for purposes of assigning a temporary total evaluation, had concluded by the end of August 1998. ORDER Extension through August 1998, of a temporary total evaluation for convalescence following May 1998 surgical treatment of a service-connected right elbow disability is granted, subject to laws and regulations governing effective dates. WARREN W. RICE, JR. Member, Board of Veterans' Appeals