Citation Nr: 1310323 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 12-05 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an extension of a temporary total evaluation beyond September 30, 2011, based on the need for convalescence following left rib resection surgery associated with service-connected thoracic outlet syndrome on July 6, 2011. REPRESENTATION Veteran represented by: John P. Dorrity, Agent ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to April 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which determined that the Veteran's temporary total evaluation would cease on September 30, 2011. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Original jurisdiction of the Veteran's claim resides in the VARO in Buffalo, New York. Since the RO's last adjudication of the Veteran's claim, additional evidence has been associated with the record. In February 2013, the Veteran's agent submitted a waiver of local consideration of this evidence which was signed by the Veteran. This waiver is contained in the Veteran's VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After review of the record, the Board concludes that additional evidentiary development is necessary in order to allow VA to fulfill its duty to assist the Veteran. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In July 2011, the Veteran underwent left rib resection surgery which was necessitated by his service-connected thoracic outlet syndrome. In the October 2011 rating decision, the RO established service connection for residuals of a left rib resection, and staged the evaluation assigned for his service-connected thoracic outlet syndrome, to include the assignment of a temporary total evaluation under 38 C.F.R. § 4.30 from July 6, 2011, to September 30, 2011. Thereafter, the Veteran expressed disagreement with the discontinuance of the temporary total evaluation, and requested an extension of such. The pending appeal ensued. Temporary total ratings 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 (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, recent amputation stumps, 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(a). Title 38 C.F.R. § 4.30 also provides that a temporary total rating may be assigned for a period of 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release. Extensions of 1, 2, or 3 months beyond the initial 3 months may be granted under the provisions of 38 C.F.R. § 4.30(a) (1), (2), or (3), (noted above) and further extensions of 1 or more months, up to 6 months, may only be made under the provisions of 38 C.F.R. § 4.30(a) (2) or (3) (e.g., where there are severe postoperative residuals) upon approval from the Veterans Service Center Manager. 38 C.F.R. § 4.30(b). 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 provisions of 38 C.F.R. § 4.30. Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). T he Court of Appeals for Veterans Claims (Court) has defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden, 11 Vet. App. at 430 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)). The Court also defined recovery as the act of regaining or returning toward a normal or healthy state. Id. (citing WEBSTER'S MEDICAL DESK DICTIONARY 606 (1986)). In sum, a temporary total evaluation may be assigned for up to twelve months, with approval of the Veterans Service Center Manager, if the criteria of 38 C.F.R. § 4.30(a) and (b) are met. Accordingly, the time period for consideration of medical evidence associated with the Veteran's surgery is from July 2011 to July 2012. Review of the evidence of record reflects that, since the Veteran's July 2011 left rib resection surgery, he was provided VA examinations to determine the musculoskeletal and neurologic manifestations of his service-connected thoracic outlet syndrome and left rib resection in October 2011. Further, since these examinations, the Veteran has submitted private treatment records and statements from his employer which outline his symptomatology and resulting work limitations, respectively. Specifically, these records reflect that the Veteran cannot perform all of the duties of his employment due to neurologic impairment of his left upper extremity resulting from the July 2011 left rib resection surgery, and, in January 2012, the Veteran was prescribed a left hand splint. See e.g., EMG/NCS test results and private treatment records dated in January 2012, a February 2012 MRI report and an October 2011 statement from the Veteran's employer. The VA clinician who conducted the October 2011 VA examinations did not provide an opinion as to whether the claimant's post-July 6, 2011, adverse symptomatology met the criteria for extension of a temporary total rating under 38 C.F.R. § 4.30 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Accordingly, the Board concludes that a remand is required to obtain an answer to this question. 38 U.S.C.A. § 5103A(d) (the VCAA requires that VA provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As this claim must be remanded for other matters, the Board concludes that updated VA and private treatment records should be sought. Although the record does not include VA outpatient treatment records other than VA examinations, the Veteran should be requested to identify whether he has received VA treatment for his service-connected thoracic outlet syndrome and left rib resection. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his service-connected thoracic outlet syndrome and left rib resection. The Board is particularly interested in all records from Drs. Gilson and Wolfe dated from October 2011 to the present. The Veteran must complete a release for any private treatment records identified by him prior to any attempts to obtain such. All evidence obtained should be associated with the record. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. Thereafter, transfer the Veteran's claims file to an appropriate VA clinician. After a review of the record, the clinician must address the following: Did the Veteran's July 6, 2011, left rib resection surgery result in 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), and if so, for how long? The VA clinician must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the clinician concludes that a physical examination of the Veteran is necessary in order to provide the requested opinions, such should be scheduled and the Veteran must be notified. 3. After conducting the above development refer the case to the Veterans Service Center Manager, for approval of any further extension of convalescent rating under 38 C.F.R. § 4.30(b). 4. Thereafter, readjudicate the claim on appeal. If the benefit on appeal is not granted to the fullest extent or to the Veteran's satisfaction, issue the Veteran and his agent a Supplemental Statement of the Case (SSOC) and allow for a reasonable period to respond. 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). This 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).