Citation Nr: 1315942 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 06-37 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an extension beyond May 31, 2005, for a total convalescent rating under the provisions of 38 C.F.R § 4.30 based on surgery for a right inguinal hernia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU rating) prior to August 29, 2012. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and May 2010 RO rating decisions. The January 2006 RO decision granted a total convalescent rating under the provisions of 38 C.F.R. § 4.30, from April 15, 2005, to May 31, 2005. The May 2010 RO decision denied a claim for a TDIU rating. The Board observes that the Veteran also has claims for entitlement to an increase in a 20 percent rating for chondromalacia of the right patella; entitlement to an increase in a 10 percent rating for degenerative joint disease of the right knee; entitlement to an increased (compensable) rating for status post arthrotomies of the right knee for the period prior to March 21, 2007; entitlement to an initial rating higher than 10 percent for chondromalacia of the left knee, with degenerative joint disease; entitlement to an initial higher (compensable) rating for subluxation of the right knee for the period from October 22, 1999, to May 31, 2009; entitlement to an increase in a 10 percent rating for postoperative residuals of a right inguinal hernia; and entitlement to an increase in a 10 percent rating for ilioinguinal nerve entrapment. These claims were addressed in a separate decision and remanded by the Board in February 2012. However, the requested development has not been completed as the claims have not been recertified to the Board for adjudication. In February 2012, the Board also denied the Veteran's claim of entitlement to an extension beyond May 31, 2005, for a total convalescent rating under the provisions of 38 C.F.R § 4.30 based on surgery for a right inguinal hernia, and also remanded the issue of entitlement to a TDIU. The Veteran appealed the Board's February 2012 decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2012 order, granted the parties' joint motion for remand, vacating the Board's February 2012 decision and remanding the case for compliance with the terms of the joint motion. In a December 2012 rating decision, the RO granted the Veteran's claim of entitlement to a TDIU, and assigned an effective date of August 29, 2012. However, the Board notes that this is not a full grant of the benefit sought on appeal as the Veteran filed his claim for a TDIU previously and there remains on appeal several claims seeking higher ratings for service-connected disabilities that were remanded to the RO in February 2012 and not recertified back to the Board because the development requested in the remand has presumably not been completed. Further, given the contentions of the Veteran's attorneys, see letter received in April 2013, the issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO for further development. FINDING OF FACT The evidence shows the Veteran required convalescence through November 30, 2005, following right inguinal hernia surgery. CONCLUSION OF LAW The criteria for an extension to November 30, 2005, for a total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on surgery for a right inguinal hernia, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a July 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or submit any further evidence in his possession that pertains to the claim. A March 2006 letter, also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. This claim was last readjudicated in September 2010. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include: the Veteran's service treatment records; post-service private and VA treatment records; and VA examination reports. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified of and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the Veteran. As such, there is no indication that there is any prejudice to the Veteran by the order of the events in this case. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra. Analysis As will be discussed below, the Board has determined that the Veteran meets the basic eligibility requirements for an extension to November 30, 2005, of his VA convalescence benefits under the provisions of 38 C.F.R. § 4.30. The Board has reviewed all the evidence in the Veteran's claims file, which includes the following: his contentions; service treatment records; post-service private and VA treatment records; and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A temporary total rating (100 percent) 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. The Court has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995). The Veteran contends that he is entitled to an extension beyond May 31, 2005, for his total convalescent rating under the provisions of 38 C.F.R § 4.30 based on surgery for a right inguinal hernia. He specifically contends that he has a right inguinal hernia and nerve damage, that his surgery on April 15, 2005, was his third surgery for such disorder, and that he received treatment for nerve damage until December 2005. The Veteran asserts that he is entitled to temporary convalescent rating for a period of six months following his surgery, until November 30, 2005. See April 2013, Brief in Support of Veteran's Claim. An April 15, 2005, operation report from Mississippi Baptist Medical Center notes that the Veteran had a right inguinal hernia that was repaired in 1969 and again in 1989. The surgeon, G. E. Copeland, M.D, indicated that the Veteran had worsening groin pain and that a groin exploration was discussed with him in order to search for a hernia. Dr. Copeland also reported that if there was no hernia found, they would litigate the Veteran's ilioinguinal nerve. The operation report indicates that the Veteran was found to have an indirect right inguinal hernia and that he underwent a mesh plug repair of a recurrent indirect inguinal hernia. The postoperative diagnosis was a recurrent, indirect, right inguinal hernia. The operation report notes that after the surgery, the Veteran was awakened, extubated and taken in stable condition to the emergency room. At the time of the April 15, 2005, surgery, the Veteran was service-connected for disorders including postoperative residuals of a right inguinal hernia and for ilioinguinal nerve entrapment. A May 4, 2005, statement from G. E. Copeland, M.D., reports that the Veteran was receiving treatment for a right inguinal hernia. Dr. Copeland stated that the Veteran had surgery on April 15, 2005, and that he had not been released to return to work. Dr. Copeland indicated that the Veteran's release date would be determined when he returned for follow-up. A May 2005 VA orthopedic examination report notes that the Veteran reported that he retired as a mail handler in 1975 because of depression, hypertension, and knee problems. The Veteran reported symptoms concerning his left knee disability. It was noted that the Veteran claimed that he was unable to work, but that he admitted that he could do sedentary work. The diagnoses were chondromalacia of the left patella and Osgood-Schlatter disease of the left tibia. The examiner commented that he believed the Veteran could perform sedentary work without causing further problems to his left knee. The Veteran's service-connected postoperative residuals of a right inguinal hernia were not discussed at the time of the examination. A June 2005 pain clinic report from C. M. McLeod, M.D., indicates that the Veteran was seen about three weeks earlier and that right ilioinguinal and right genitofemoral nerve blocks were performed. Dr. McLeod stated that the Veteran's groin and testicular pain was better and that he was still have some mild pain. A July 2005 statement from Dr Copeland notes that the Veteran was still under his care. Dr. Copeland reported that the Veteran had an appointment in August 2005 and that it was still undetermined when he could return to work. An August 2005 progress note from Dr Copeland notes that the Veteran returned for a postoperative visit after undergoing surgery for a recurrent indirect right inguinal hernia on April 15, 2005. Dr. Copeland indicated that the Veteran had a Perfix plug/patch repair. Dr. Copeland reported that the Veteran stated that he had no significant postoperative complaints. It was noted that the Veteran reported satisfactory relief of his pain with Lorocet Plus and nonsteroidal anti-inflammatory drugs. Dr. Copeland stated that the Veteran had resumed his normal activities. Dr. Copeland indicated that the Veteran's pain in his groin was better for three and a half weeks after his last injection, but that it had returned. It was noted that the Veteran still had pain in his right lower back and a pinpoint burning area that were present before his surgery. An October 2005 report from Dr. McLeod indicates that the Veteran was seen for a follow-up. The Veteran reported that he was still having some groin pain. However, the Veteran again received treatment from Dr. McLeod in November 2005. At that time, he continued to report pain in his groin. Dr. McLeod reported on the treatment record that he filled out a temporary disability form for the Veteran. Dr. McLeod clearly indicated that the Veteran will not be permanently disabled, but he is temporarily disabled. Thereafter, a January 2006 RO decision granted a total convalescent rating under the provisions of 38 C.F.R. § 4.30, from April 15, 2005, to May 31, 2005. A March 2006 VA stomach, duodenum, and peritoneal adhesions examination report notes that the Veteran reported that in March 2005, he was treated at Mississippi Baptist Medical Center because of continued pain in his right groin area and that he was told he had a nerve entrapment with excessive scarring. The Veteran stated that he underwent a third surgery to remove the scarring. He stated that he continued to have shooting pain in the right groin area and that he had continued taking Darvocet for his pain. The Veteran indicated that he had received a couple of steroid injections after his surgery, but that he stopped receiving them in November 2005 because they were too expensive. The diagnosis was status post right inguinal hernia repair. The Board observes that there is conflicting medical evidence of record concerning the Veteran's request for an extension of the convalescence period following his April 2005 surgery until November 30, 2005. 38 C.F.R. § 4.30. Again, the Board notes the May 2005 and July 2005 statements from Dr. Copeland indicate that it was undetermined whether the Veteran could return to work, and the November 2005 statement from Dr. McLeod which shows the Veteran was still temporarily disabled. On the other hand, a May 2005 VA orthopedic examination report notes that the Veteran reported that he retired as a mail handler in 1975 because of depression, hypertension, and knee problems. Additionally, the VA examiner commented that he believed the Veteran could perform sedentary work without causing further problems to his left knee. The Board notes that the May 2005 VA examination report essentially addressed the Veteran's left knee problems, but there was no indication that the Veteran was unable to work because of his right inguinal surgery in April 2005. A June 2005 report from Dr. McLeod stated that the Veteran's groin and testicular pain was better and that he still had some mild pain. Additionally, an August 2005 report from Dr. Copeland notes that the Veteran stated that he had no significant postoperative complaints following his surgery for a recurrent indirect right inguinal hernia on April 15, 2005. In light of the conflicting medical evidence, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's is entitled to an extension of convalescence benefits to November 30, 2005 as a result of his inguinal hernia surgery in April 2005. Consequently, the Board will resolve all reasonable doubt in his favor and find that the extension of a total convalescent rating under the provisions of 38 C.F.R. § 4.30 beyond May 31, 2005 to November 30, 2005, is warranted. ORDER An extension beyond May 31, 2005 to November 30, 2005, but no later, for a total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on surgery for a right inguinal hernia, is granted. REMAND The remaining issue on appeal is entitlement to TDIU prior to August 29, 2012. In a separate decision, issued in February 2012, the Board granted a 10 percent rating for the service-connected status post arthrotomies of the right knee for the period prior to March21, 2007, and an initial 10 percent rating for subluxation of the left knee for the period from October 22, 1999, to May 31, 2009. Additionally, in that same Board decision, the Board remanded the issues of entitlement to an increase in a 20 percent rating for chondromalacia of the right patella; entitlement to an increase in a 10 percent rating for degenerative joint disease of the right knee; entitlement to an initial rating higher than 10 percent for chondromalacia of the left knee, with degenerative arthritis; entitlement to an increase in a 10 percent rating for postoperative residuals of a right inguinal hernia; and entitlement to an increase in a 10 percent rating for ilioinguinal nerve entrapment. The Veteran maintains that his service-connected disabilities prevent gainful employment, warranting a TDIU rating. In a December 2012 rating decision, the RO granted the Veteran's claim of entitlement to service connection for a mood disorder, and assigned an initial 10 percent disability rating, effective from September 8, 2012. This rating decision also granted the Veteran a 20 percent disability rating for the service-connected status post arthrotomies of the right knee, effective from August 29, 2012. Based on these disabilities, in combination with the Veteran's remaining service-connected disabilities, he meets the schedular requirements of 38 C.F.R. § 4.16(a), effective from August 29, 2012. Consequently, the RO granted the Veteran's claim of entitlement to a TDIU rating effective only from August 29, 2012. In this case the schedular requirements set forth in 38 C.F.R. § 4.16(a) (2012) are met only from August 29, 2012. Prior to that date, the Veteran does not meet percentage requirements of38 C.F.R. § 4.16(a) are not met. Nevertheless, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Here, in a July 2010 report, a certified rehabilitation counselor contracted by and working for VA prepared a report in which she opined that the Veteran not able to work due to service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88,94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. If appropriate, this must be accomplished on remand for the period prior to August 29, 2012. As such, the Veteran's claim for a TDIU rating prior to August 29, 2012 is inextricably intertwined with the increased rating claims, which have yet to be recertified to the Board for readjudication, all such matters will have to be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for his service-connected disabilities since September 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since September 2010 should be obtained. 2. Have the Veteran undergo the appropriate VA examination to ascertain a retrospective opinion as to whether the service-connected disabilities alone render him unemployable prior to August 29, 2012. The claims folder must be made available and reviewed by the examiner. The examiner should describe current impairment from each of the service-connected disabilities, and should specifically provide an opinion as to whether the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. In doing so, the examiner must acknowledge and discuss the July 2010 vocational rehabilitation report. If the Veteran's service-connected disabilities do not cumulatively render him unemployable prior to August 29, 2012, the examiner should suggest the type or types of employment in which the Veteran would have been capable of engaging in with his service-connected disabilities, given his skill set and educational background. 3. Thereafter, if his TDIU claim prior to August 29, 2012 is not rendered moot, if the schedular requirements set forth in 38 C.F.R. § 4.16(a) are not met, refer his TDIU claim to Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation. Then readjudicate the claim for entitlement to a TDIU rating prior to August 29, 2012. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran, and provide an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs