On appeal from the Department of Veterans Affairs (VA) Regional Office in Wilmington, Delaware
THE ISSUES
1. Entitlement to service connection for osteomyelitis of
the right lower extremity.
2. Entitlement to a temporary and total rating based on
hospitalization at a VA medical facility from March 14, 1994,
to March 30, 1994, and from April 23, 1994, to May 3, 1994.
3. Entitlement to a temporary total convalescent evaluation
under the provisions of 38 C.F.R. § 4.30.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Julie L. Salas, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to September
1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal of a January 1995 rating decision of the RO.
The Board notes that in the written brief presentation dated
in February 2000, the veteran's representative asserted an
additional claim of service connection for right flailed
foot. As this issue has not been developed for appellate
review, it is referred to the RO for appropriate action.
The Board further notes that, in his initial claim submitted
in March 1994, the veteran asserted that he was entitled to
temporary and total ratings based on hospitalization at a VA
medical facility under 38 C.F.R. § 4.29 and under the
provisions of 38 C.F.R. § 4.30 for required convalescence.
In January 1995, the RO issued a rating decision which
addressed only the claim of entitlement under 38 C.F.R.
§ 4.30. The veteran subsequently filed a Notice of
Disagreement in response to this decision; however, in the
Statement of the Case issued in May 1995, the RO addressed
only the claim of entitlement under 38 C.F.R. § 4.29.
In light of the above circumstances, the Board assumes
jurisdiction over both claims, as reflected on the cover page
of this decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's osteomyelitis of the right lower extremity
is the likely result of injuries suffered in service.
3. The veteran was not treated for a service-connected
disability in excess of 21 days when hospitalized by VA in
March or April 1994.
4. The surgery performed during VA hospitalization from
April 23, 1994, to May 3, 1994, was for treatment of service
connected disability and necessitated at least one month of
convalescence.
CONCLUSION OF LAW
1. The veteran's osteomyelitis of the right lower extremity
is due to injuries which were incurred in service.
38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999);
38 C.F.R. § 3.303 (1999).
2. The criteria for temporary total ratings under the
provisions of 38 C.F.R. § 4.29, based on hospitalizations in
March and April 1994, have not been met. 38 U.S.C.A. § 5107
(West 1991 & Supp. 1999); 38 C.F.R. § 4.29 (1999).
3. The criteria for entitlement to benefits for a temporary
total convalescent rating for surgery performed in April 1994
have been met. 38 C.F.R. § 4.30 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. Background
The veteran contends that he suffers from osteomyelitis of
the right lower extremity as a residual of an injury which
was incurred in service. The veteran testified at a hearing
at the RO in June 1995, that while serving in Vietnam in
January 1968, he received multiple shrapnel wounds to both
legs, the chest and his left shoulder. According to the
veteran, both legs suffered open wounds and fractures. He
further reported that in the early 1970s, he sustained a
broken ankle in a motor vehicle accident, which was treated
by placement of screws. The veteran testified, however, that
the problems with his right leg, specifically drainage, pre-
dated the motor vehicle accident.
A careful review of the veteran's service medical records
confirms that in January 1968, the veteran incurred multiple
shrapnel wounds to both lower extremities with particles of
debris protruding from the wounds.
VA outpatient treatment reports obtained in support of the
veteran's claim document that the veteran was hospitalized
from March 14, 1994, to March 30, 1994, for treatment of
osteomyelitis of the right tibia. The discharge summary
associated with this hospitalization reported a history of
injury to his right lower extremity which developed into
chronic osteomyelitis. This right tibial wound was noted to
have had recurrent drainage for the last twenty years. The
veteran was subsequently hospitalized from April 23, 1994, to
May 3, 1994, for surgery for chronic osteomyelitis of the
right tibia. At that time, it was noted that the veteran had
a history of chronic osteomyelitis secondary to shrapnel
wound in Vietnam in 1968. The surgery consisted of a
procedure to aspirate his right ankle.
The veteran was afforded a VA examination in December 1994.
It was noted that the veteran had been involved in a mine
explosion in service and had incurred open, severe wounds to
the left shoulder and the right and left lower legs with
significant loss of tissue. The veteran was stated to have
experienced recurrent infections in the right lower extremity
with osteomyelitis most recently occurring in 1994. He
presented to the examination with continued complaints of
pain in the right lower extremity.
Examination of the right leg revealed range of motion of the
right knee from 0 to 120 degrees with patellofemoral
crepitation. There was also a bony prominence noted over the
medial joint fissure with pain and tenderness. The right
foot was flailed and held in -15 degrees of neutral with no
active motion. Periarticular fullness was evident in the
ankle with pain and tenderness. Extensive scarring was noted
about the anteromedial aspect of the entire right tibia with
the scar tissue adherent to the bone in some areas. Trophic
changes were also evident with pigment changes from the
proximal to the distal medial aspect of the right tibia. The
toes on the right foot were also noted to be flailed. A
dorsalis pulse could not be elicited; however, the posterior
tibial pulse was intact but decreased as compared to the
left. The final diagnoses included status post open fracture
of the right tibia with deformity and history of
osteomyelitis and flailed right foot with degenerative joint
disease of the right knee along with arthrofibrosis. The
veteran was also noted to have genu and tibial varum,
bilaterally.
The veteran was afforded another VA examination in January
1998. At that time, a history of bilateral tibial-fibula
fractures with chronic osteomyelitis, particularly of the
right lower extremity, with oozing discharge of several years
in duration, was noted. Examination demonstrated severe
deformity of both legs below the knee, with bowing of both
tibias. There was also massive scar tissue on both lower
extremities, particularly below the knee. The final
impression included a diagnosis of severe deformities of both
legs.
In support of his claim, the veteran submitted a statement
from Craig N. Bash, M.D. Dr. Bash noted that, based on a
review of the medical records, the veteran had incurred
serious, in-service dirty wounds to his lower extremities
which required antibiotic treatment. Dr. Bash then cited to
medical literature as a basis for the proposition that dirty
wounds, either by direct inoculation of bone or by direct
extension to the bone from overlying or adjacent tissue,
could clearly result in chronic osteomyelitis. As a result,
based on a review of the medical record, patient testimony,
and the medical literature concerning chronic osteomyelitis,
Dr. Bash opined that it was as likely as not that the
veteran's right lower leg osteomyelitis was a result of his
dirty, in-service shrapnel wounds to the right lower
extremity.
II. AnalysisA. Service connection
As a preliminary matter, the Board finds that the veteran's
claim is plausible and capable of substantiation, and thus
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
When a veteran submits a well-grounded claim, VA must assist
him in developing facts pertinent to the claim. 38 U.S.C.A.
§ 5107(a). The Board is satisfied that all available
relevant evidence has been obtained regarding the claim, and
that no further assistance to the appellant is required to
comply with 38 U.S.C.A. § 5107(a).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110; 38 C.F.R. § 3.303. The regulations provide that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the appellant prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet.App.
49 (1990).
Based on a review of the evidence as a whole, the Board finds
that the preponderance of the evidence supports the veteran's
claim of service connection for osteomyelitis of the right
lower extremity. Of particular significance is the opinion
from Dr. Bash, who, after review of the claims folder and
pertinent medical literature on the subject, carefully
reasoned that the veteran's right lower leg osteomyelitis
was, in fact, related to his military service.
Thus, the Board finds that service connection for
osteomyelitis of the right lower extremity is warranted.
B. Temporary total evaluation1. 38 C.F.R. § 4.29
Initially, the Board notes that a determination as to whether
the veteran has submitted a well-grounded claim as to this
issue need not be addressed. The concept of well grounded
applies to the character of the evidence presented by a
claimant. For purposes of this decision, as there is no
dispute as to the evidence, but only to the law and its
meaning, the concept of well grounded is not found to be
applicable. Sabonis v. Brown, 6 Vet. App. 426 (1994).
A total rating will be assigned without regard to the
provisions of the rating schedule when it is established that
a service-connected disability has required hospital
treatment in a VA or an approved hospital for a period in
excess of 21 days or hospital observation at VA expense for
service-connected disability for a period in excess of 21
days. 38 C.F.R. § 4.29.
VA outpatient treatment records show that the veteran was
hospitalized for treatment of osteomyelitis of the right
lower extremity from March 14, 1994, to March 30, 1994, and
from April 23, 1994, to May 3, 1994.
The evidence shows that the veteran was not hospitalized for
treatment of a service-connected disability in excess of 21
days during either of these periods of inpatient treatment.
Consequently, the record does not support a grant of
entitlement to a temporary total evaluation under the
provisions of 38 C.F.R. § 4.29, and the veteran's claim for
this benefit accordingly must be denied as legally
insufficient.
Although the Board considered and denied the veteran's claim
on a ground different from that of the RO, the Board finds
that veteran has not been prejudiced by the fact that the RO
did not consider the veteran's claim of entitlement to a
temporary total evaluation under the provisions of 38 C.F.R.
§ 4.29 based on hospitalization for osteomyelitis of the
right lower extremity after service connection for this
condition had been established. Bernard v. Brown, 4 Vet.
App. 384, 394 (1993). The Board finds that there has been no
prejudice to the veteran because a temporary total disability
rating under 38 C.F.R. § 4.29 is not warranted as a matter of
law and no argument or evidence could provide the basis for
granting such benefits.
2. 38 C.F.R. § 4.30
A temporary total disability rating is granted if it is
established by report at hospital discharge or outpatient
release that entitlement is warranted (under 1, 2, or 3,
listed below), effective the date of hospital admission or
outpatient treatment and continuing for a period of 1, 2, or
3 months (or more) from the first day of the month following
such hospital discharge or outpatient release. A total
disability rating will be assigned when 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 prohibited);
or (3) immobilization by cast, without surgery, of one major
joint or more. 38 C.F.R. § 4.30.
As noted above, the veteran was hospitalized for treatment of
his service-connected osteomyelitis of the right lower
extremity in April 1994. In support of his claim, the
veteran submitted a statement dated in October 1995 from Anna
M. Hyneman, R.N., Community Health Nurse Coordinator, and
Caroline C. Johnson, M.D., Chief, Infectious Diseases, of the
Philadelphia VA Medical Center. According to Ms. Hyneman and
Dr. Johnson, following the April 1994 surgery, the veteran,
consistent with current medical practice designed to assist
patients in adjusting to a chronic medical condition and to
free beds for more acute problems, was discharged to home on
intravenous Vancomycin for 6 weeks and was to be non-weight
bearing on the right lower extremity. He was also given
appointments to report to the Orthopedic Clinic and to the
I.V. Infusion Clinic in order to adjust the antibiotics and
check his serum creatinine. Ms. Hyneman and Dr. Johnson went
on to state that the veteran was, in fact, checked in both
the Orthopedic and Infectious Disease Clinics and was unable
to return to work until October 1994.
Based on a review of the evidence, the Board finds that the
April 1994 hospitalization was for treatment of a service
connected disability, specifically, osteomyelitis of the
right lower extremity. In addition, the subsequent medical
evidence indicates that that the surgery performed during
this hospitalization required at least one month of
convalescence. Accordingly, the criteria for entitlement to
a temporary total rating based on the hospitalization in
April 1994 are met.
ORDER
Service connection for osteomyelitis of the right lower
extremity is granted.
Entitlement to a temporary total evaluation under the
provisions of 38 C.F.R. § 4.29, based on hospitalizations in
March and April 1994, is denied.
Entitlement to a temporary total convalescent evaluation
under the provisions of 38 C.F.R. § 4.30 is granted.
