Citation Nr: 1304403	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  10-34 258	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a disability rating higher than 40 percent for degenerative arthritis of the lumbar spine.  

2.  Entitlement to an extension of a temporary total disability rating under 38 C.F.R. § 4.30 beyond January 2011 for convalescence following lumbar spine surgery in August 2010. 


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel




INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.  

The Veteran, who is the appellant served on active duty from June 1976 to December 1989.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of April 2009 and in January 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). 

The claim for increase for degenerative arthritis of the lumbar spine is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The lumbar laminectomy did not require convalescence or result in severe postoperative residuals beyond January 1, 2011.  


CONCLUSION OF LAW

The criteria for extension of a temporary total disability rating beyond January 2011 for convalescence following lumbar spine surgery in August 2010 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012).





The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre-adjudication VCAA notice by letter in August 2010.  As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained VA and private medical records. 

In May 2011, the Veteran was afforded a VA examination.  As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Entitlement to an Extension of a Temporary Total Rating

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 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.  


An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request.  38 C.F.R. § 4.30.

In July 2010, a private physician stated that the Veteran was to undergo a laminectomy on August 2, 2010, and that the Veteran would be out of work for 6 to 8 weeks.  

In January 2011, the RO granted the Veteran a temporary total rating from August 2, 2010, the date of the surgery, to October 1, 2010, eight weeks after the surgery.  

In January 2011, in the Notice of Disagreement, the Veteran stated that he had been ordered not to work through December 21, 2010.  The Veteran stated that he continued to have back pain, but he returned to work avoid financial stress.  

The Veteran's private physician extended the period of the Veteran's convalescence to November 23, 2010.  And the West Georgia Chiropractic practice extended the date to December 23, 2010.  

In April 2011, the RO extended the Veteran's temporary total rating until January 2011, covering the period described by both Dr. Walsh and the Veteran's chiropractor.  

VA and private medical records after January 2011 do not show severe postoperative residuals of the lumbar spine, such as an incompletely healed surgical wound, therapeutic immobilization of one major joint or more, application of a body case, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, regular weight-bearing prohibited.  



Although the Veteran continued to suffer from back pain and limitation of motion, the Veteran returned to work in December 2010.  

For these reasons, the preponderance of the evidence is against the claim for an extension of a temporary total disability rating beyond January 2011.  There is no doubt to be resolved and an extension of the temporary total disability rating is not warranted.  


ORDER

Entitlement to an extension of a temporary total disability rating under 38 C.F.R. § 4.30 beyond January 2011 for convalescence following lumbar spine surgery in August 2010 is denied.  


REMAND

On the claim for increase for degenerative arthritis of the lumbar spine, on VA examination in July 2010 the Veteran had severe flare-ups every two to three weeks that were alleviated by rest or medication.  In May 2011 on VA examination, it was noted that the Veteran had three incapacitating episodes during the past 12 months.  The VA examiner noted that the Veteran suffered severe weekly flare-ups, lasting from 1 to 2 days, and that the Veteran had missed 25 weeks from work during the past 12 months.  

As the VA examination does not contain sufficient findings to decide the claim, the claim is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine whether the Veteran has incapacitating episodes?  





An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician.  

If the Veteran does have incapacitating episodes, provide the total duration of the episodes in past 12 months.  

2.  After the development, adjudicate the claim.  If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs