Citation Nr: 1305564 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-15 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an extension of a temporary total convalescence rating beyond June 30, 2009, under 38 C.F.R. § 4.30 following cervical spine surgery. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1972 to June 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in part, denied the Veteran's claim for a temporary total convalescence rating. In an April 2010 rating decision, the RO granted a temporary total convalescence rating from March 30, 2009, to June 30, 2009. However, in his July 2009 Notice of Disagreement to the June 2009 rating decision, the Veteran indicated that he sought a temporary total convalescence rating to July 7 or 8, 2009. Subsequently, the RO issued an appropriate Statement of the Case in April 2010, and the Veteran perfected his appeal in April 2010. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. On his VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran raised the issue of an increased evaluation for his service-connected cervical spine disability. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The clinical findings demonstrate that prior to June 30, 2009, the Veteran had recovered sufficiently from cervical spine surgery to return to the performance of his duties; no further convalescence was required. CONCLUSION OF LAW An extension of the temporary total rating on account of post-surgical convalescence beyond June 30, 2009, has not been established. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in May 2009, prior to the June 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter specifically set forth the evidence needed to demonstrate a temporary total disability due to surgery. The Board notes that the Veteran was not notified of as to how disability ratings and effective dates are established pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to him under the holding in Dingess. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. Additionally, the Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has declined the opportunity to provide evidence in a hearing before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Temporary Total Evaluation Beyond June 30, 2009 The Veteran contends that he is entitled to an extension of Paragraph 30 (38 C.F.R. § 4.30) benefits beyond June 30, 2009, for convalescence and neck immobilization by cervical collar for six weeks. He seeks an extension to July 8, 2009. The regulatory provisions providing for convalescence ratings read as follows: A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to 38 C.F.R. § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. (a) 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 (Effective as to outpatient surgery March 1, 1989); (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, 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) (Effective as to outpatient surgery March 1, 1989); (3) Immobilization by cast, without surgery, of one major joint or more (Effective as to outpatient treatment March 10, 1976). A reduction in the total rating will not be subject to 38 C.F.R. § 3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. (b) A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial three months may be made under paragraph (a)(1), (2), or (3) of this section. (2) Extensions of 1 or more months up to 6 months may be made under paragraph (a) (2) or (3) of this section upon approval of the Adjudication Officer. 38 C.F.R. § 4.30 (2012). In this case, the Veteran underwent cervical spine surgery to fuse C3-4, C5-6 on March 30, 2009. The RO granted the Veteran a temporary total evaluation totaling three months from March 30, 2009, to June 30, 2009. The RO declined extending this temporary total rating, finding that the Veteran did not meet the criteria for an extension as required under 38 C.F.R. § 4.30. VA treatment records confirm that the Veteran underwent anterior cervical disc excision and fusion on March 30, 2009. Treatment records dated the following day show that the Veteran did very well with functional mobility and was independent with bed mobility, transfers, gait without assistive devices, and stair management. He was also independent with the basic walking program and active range of motion exercises for the shoulders. He was noted to be was safe from a functional standpoint. The records also show that he had difficulty swallowing and arm weakness, which resolved by March 31, 2009. An April 1, 2009, occupational therapy record showed that the Veteran had been issued an Aspen collar for six to eight weeks and that his activity orders were independent mobility, no assistance needed, and wearing the cervical spine pain collar. He was independent with the activities of daily living (feeding, grooming, toileting, dressing, and bathing) with extra efforts in some tasks and collar limitations. As to instrumental activities of daily living (laundry, cooking, cleaning, shopping, finances, transportation, and driving), the Veteran had support from his wife during his recovery. With regard to functional mobility, the Veteran was independent with activities of daily living mobility and transfers. Additionally, upper extremity function was noted to be within full limits and the Veteran reported that there was no pain or diminished upper extremity/hand dexterity function; his fine motor skills were within full limits. The therapist indicated that the Veteran was cleared to return home from the activities of daily living perspective with no adaptive equipment/durable medical equipment needs, and no additional skilled occupational therapy services were recommended at that time. The Veteran was discharged on April 3, 2009, and the discharge note reflected that his previous dysphagia had almost completely resolved, and he was stable at the time. A June 18, 2009, Return to Work Evaluation showed that the Veteran had about 20 degrees of range of motion in all planes, and it was recommended that he follow up with neurology to determine whether he could be cleared to resume bus driving. The clinician indicated that he would be okay if neurology cleared the Veteran as he was concerned with whether the Veteran could perform a job with a 25 pound restriction. A June 24, 2009, VA neurosurgery treatment record showed that the Veteran did not have headaches since his surgery, pain in the right side of the neck and shoulder was gone, and there was no weakness in the right arm. Although he had very slight numbness in the right thumb, that had improved since surgery. He did have some decreased lateral range of motion in the neck due to stiffness. The clinician indicated that there was no 25 pound restriction, and no further follow-up was necessary unless there was a change. A July 1, 2009, treatment record noted that the Veteran had been unable to return to work due to weight restrictions, that he had been seen for a work evaluation, and he had then been recommended to return to his neurosurgeon who recommended physical therapy. A July 2, 2009, Memorandum for Duty Status showed that the Veteran completed functional evaluation for his upper extremity function status-post his cervical spine surgery. He had 5/5 gross muscle strength in the bilateral upper extremities, 2+ and equal bilateral upper extremity reflexes, and normal sensation in the C4-T1 dermatome levels. The author indicated that the Veteran met the specific physical job function requirements for First Transit and that it was safe for him to return to work, but it was recommend that he begin working six hours a day and gradually increase his drive time as tolerated. A July 7, 2009, letter showed that the Veteran's recovery had been extended to ensure that his cervical levels had fused, and an x-ray confirmed that it had, and he was thus able to return to work at that time. Another letter dated the same day shows that the Veteran met the specific job function requirements for First Transit and his first physical therapy appointment was on July 10, 2009, which did not preclude him from returning to work. The record shows that the Veteran underwent physical therapy from July 2009 to August 2009. By an April 2010 rating decision, the RO granted a temporary total rating for post-surgical convalescence for the interval from March 30, 2009, to June 30, 2009, based on the March 2009 surgery. Based on the evidence outlined herein, there is no medical evidence not confirm any severe post-surgical residuals as required by 38 C.F.R. § 4.30 such as incompletely healed surgical wounds, 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 (with full weight bearing forbidden) or immobilization by cast, without surgery, of one major joint or more after June 30, 2009. Indeed, there is evidence to the contrary. The record shows that the surgery went without incident, and the Veteran's post-surgical recovery was uneventful. Furthermore, the pain was described as being improved from prior to surgery. The Board recognizes that there is some confusion as to when the Veteran was cleared for work. Although the June 24, 2009, report showed that the Veteran was cleared to return to work, a July 1, 2009, report showed that he had not been cleared since he had a 25 pound weight restriction. The Board notes that the July 1, 2009, report appears to be based on the Veteran's assertions and not on review of the claims folder. The weight of the evidence demonstrates that by June 24, 2009, the Veteran had no weight restriction, and he was cleared for work. Additionally, the Board notes that the Veteran received physical therapy after the period of convalescence. However, the criteria of 38 C.F.R. § 4.30 are specific, and do not contemplate the facts as to whether the cervical spine was fully functional and without impairment. Rather, the provisions of 38 C.F.R. § 4.30 essentially provide compensation for the temporary disability caused by a surgical procedure with recognition that overall disability rating should be re-evaluated after stabilization. Based upon the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against a finding of any basis to extend the Veteran's convalescence period beyond the three months already granted following the March 30, 2009, surgery. It does not appear that any of the criteria cited in § 4.30 were satisfied as of July 1, 2009, and there is certainly no indication of the criteria being satisfied at any time after July. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2002). The Board, therefore, finds that an extension of a temporary total convalescent rating under the provisions of 38 C.F.R. 4.30 beyond June 30, 2009, is not warranted. The appeal is accordingly denied. ORDER Entitlement to an extension of a temporary total convalescence rating beyond June 30, 2009, under 38 C.F.R. § 4.30 following cervical spine surgery is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs