12-13 510

Citation Nr: 1710384 Decision Date: 03/22/17 Archive Date: 04/11/17 DOCKET NO. 12-13 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a temporary total disability rating for convalescence because of treatment for a service-connected condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction over the appeal is currently with the RO in Providence, Rhode Island. In the Veteran's substantive appeal, VA Form 9, he indicated that he wanted a Board hearing in Washington, D.C. However, the Veteran has since withdrawn this request. However, VA's duty to provide a hearing has been met, and the case is properly before the Board for appellate review and adjudication. 38 C.F.R. § 20.700 (2016). FINDING OF FACT After the Veteran's October 28, 2010, surgery, he required one month, but not more, of convalescence. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a one-month temporary total disability rating based on the need for convalescence have been met. 38 U.S.C.A. §§ 1155 , 5103, 5107 (West 2002); 38 C.F.R. § 4.30 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2016). The full award of benefits sought on appeal is being granted at this time. Consequently, any further discussion respecting the VCAA is not necessary. Entitlement to a Total Rating Based on Convalescence The Veteran is currently service-connected for De Quervains tenosynovitis, status post release of the extensor tendon to the left thumb with scar, associated with Type II diabetes mellitus. He has been service-connected for this disability since June 11, 2010. He now contends that he should be granted a temporary total rating for convalescence for one month based on surgery he received on October 28, 2010. Under 38 C.F.R. § 4.30 , a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release when treatment of a service-connected disability results 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 case, 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. 38 C.F.R. § 4.30 . For purposes of this section, the major joints include the shoulder, elbow, hip, knee, ankle and, as is relevant here, the wrist. 38 C.F.R. § 4.45 (f) (2016). Notations in the medical record as to a Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provision of 38 C.F.R. § 4.30 . Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the term "convalescence" does not necessarily entail in-home recovery. Based on the evidence in the claims file, a temporary total rating for convalescence is warranted for following his surgery on October 28, 2010, based on the therapeutic immobilization of his wrist. Specifically, as reported by him and as noted in his medical records, his hand and wrist were immobilized for an extended period of time. He also stated that although his stitches were removed 13 days after surgery, he still experienced swelling, immobility of the hand, and severe pain. In a post-surgical instruction dated the day of his surgery, he was instructed to not remove his dressing or splint for an unspecified period of time. Therefore, a one-month period of convalescence is warranted on this basis. As for whether a total rating is warranted under 38 C.F.R. § 4.30 for greater than one month, the Veteran specifically stated in his September 2011 notice of disagreement that he was seeking only a total disability rating for only one month. Therefore, the Board views its decision as a full grant of benefits. Even so, it does not appear that a total disability rating would be warranted for greater than one month in any event. Specifically, the medical evidence demonstrates that, despite the immobilization of his hand and wrist, he made a smooth and rapid recovery. Treatment records reflect that he experienced intense, constant pain before his surgery. In fact, on November 2, 2010, less than a week after surgery, he reported that his wrist was feeling "fine." On November 10, 2010, he reported to his physician that his pain had greatly improved since the surgery. At the time, the physician observed minimal edema, a healed incision, and no erythema. The physician assessed that the Veteran was "doing well" and recommended starting range of motion exercises. Therefore, the Board concludes that a temporary total rating for convalescence for one month, but not more, is warranted, subject to the laws and regulations governing the payment of monetary benefits. However, since the Veteran is already receiving a total disability rating based on unemployability since July 29, 2010, and prior to his wrist surgery, he should be aware that this grant is unlikely to result in a significant change in monetary benefits. ORDER A one month temporary total disability rating based on the need for convalescence is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs