Citation Nr: 1318607 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-38 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a three month extension of a temporary total rating beyond February 29, 2008, based on the need for convalescence following December 2007 surgery associated with service-connected low back disability. 2. Entitlement to an extension of a temporary total rating beyond May 31, 2008, based on the need for convalescence following December 2007 surgery associated with service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active military service from July 1968 to July 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2009 the Veteran indicated that he no longer desired a Board hearing on this matter. The issue of entitlement to an extension of a temporary total rating beyond May 31, 2008, based on the need for convalescence following December 2007 surgery associated with service-connected low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT There is a showing of severe postoperative residuals following December 2007 surgery warranting a three-month extension from March 1, 2008 through May 31, 2008, but not beyond, of a previously assigned temporary total rating. CONCLUSION OF LAW The criteria for a three-month temporary total rating extension from March 1, 2008 through May 31, 2008, but not beyond, for low back disablement, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has not been informed, via RO correspondence, of the criteria for an extension of his temporary total rating. Not all notice errors require corrective action. Rather, the question is whether 38 C.F.R. § 19.9 requires that the matter be remanded for correction of the error is because such action is essential for a proper appellate decision. This the Board views in light of the rule of prejudicial error, which provides that if the error is not prejudicial to the claimant, it is harmless error and therefore requires no correction. See generally, Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of claims for VA benefits). Here, the Veteran was provided with a statement of the case in September 2009 that included the regulatory text (38 C.F.R. § 4.30) explaining to him what is required for a grant of an extension of his temporary total rating. Further, the Veteran's November 2008 statement demonstrated a basic knowledge of what was needed to grant his claim. Based on the foregoing, together with the opportunity that the Veteran has had to meaningfully participate in the processing of this matter, that is, to offer argument and to submit evidence or request that VA obtain evidence, the Board finds that there has been no prejudice to the Veteran resulting from the defects in VCAA notice and that a remand is not necessary to inform the Veteran of that which a person would already understand given the facts of this case. As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In February 2008 RO correspondence the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the evidence of record contains the Veteran's VA treatment records pertaining to the December 2007 surgery, post-operative VA treatment records, and private treatment records. There is no indication of relevant, outstanding records which would support the Veteran's claim. Further, the medical records and examinations associated with the claims file contain sufficient information to decide the issue on appeal. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Analysis The Veteran was granted service connection for a back condition (characterized as thorolumbar muscular pain) in October 1990. The Veteran's service-connected back condition is currently characterized as low back strain, status post diskectomy, status post L4-5 transforminal lumbar interbody fusion, and is rated as 20 percent disabling, effective March 1, 2008. On December 3, 2007 the Veteran underwent L4/5 transforminal lumbar interbody fusion (TLIF) with globus implants and cell saver. He was granted entitlement to a total disability rating for convalescence under 38 C.F.R. § 4.30 from December 3, 2007 to February 29, 2008. The Veteran submitted a notice of disagreement to this issue in November 2008, arguing that he should be entitled to a period of convalescence longer than what he received. He stated that he would be unable to return to his work as a bus driver. 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). 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 of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b). A Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provision of 38 C.F.R. § 4.30. Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the term "convalescence" does not necessarily entail in-home recovery. As relevant here, the Court of Appeals for Veterans Claims 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. The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id. In this case, the Veteran's back surgery occurred on December 3, 2007, and his assigned total disability rating terminated on March 1, 2008. Accordingly, he essentially was granted a 3 month period for convalescence. VA treatment records showed that the Veteran underwent low back surgery on December 3, 2007 and he was discharged on December 8, 2007. Prior to discharge, as noted in a December 4, 2007 VA record, the Veteran was told to take precautions against twisting, bending, or lifting greater than 10 pounds for 6-8 weeks or as directed by a physician. A January 16, 2008 VA follow-up record noted that the Veteran's back pain had improved but his neuropathic pain in his lower extremities had increased. Another VA record dated January 16, 2008 noted that the Veteran was able to demonstrate safe and proper use of a cane on level surfaces and steps. His pain was 4/10 in his low back and he was taking oxycodone. A February 27, 2008 VA record noted that the Veteran complained of back pain that radiated through the anterior lower extremities to the ankles. The Veteran ambulated with a cane. Sensation was intact and strength testing in the lower extremities was 4+/5 to 5/5. The Veteran stated that he continued to have back and leg pain although there had been some improvement in that he no longer had pain in his feet. In a March 24, 2008 VA record the Veteran continued to complain of back pain. In an April 4, 2008 VA record the Veteran indicated decreased back pain since his December 2007 surgery but stated that he had bilateral lower extremity pain that he did not have prior to his back surgery. He reported average pain of 6-10 and current pain of 8/10. An April 8, 2008 VA record noted that the Veteran ambulated with a cane. At an April 11, 2008 VA (QTC) examination the Veteran stated that he had not worked since his December 2007 back surgery. He complained that his back was stiff and painful and that he had problems sleeping at night due to leg pain. He took sleeping pills and used Tramadol and Gabapentin for regular pain and Vicodin for severe pain. Physical examination revealed that the Veteran's posture was within normal limits but his gait was abnormal due to a right side limp. Muscle spasm was absent but lower back tenderness was noted. Flexion of the thoracolumbar spine was to 70 degrees and extension was to 20 degrees. An April 17, 2008 record noted a much improved standing posture. An April 22, 2008 VA record indicated that the Veteran was doing "pretty well" until working in a garden over the weekend with extensive sitting on a low stool in a fixed position. An improved posture and gait was noted. An April 24, 2008 VA record noted that the Veteran complained of constant lower extremity pain. The Veteran ambulated with a cane and indicated that he was ready to begin physical therapy. A May 20, 2008 VA record noted that the Veteran stated that overall his back pain had improved but he still had radicular pain, especially on the right lower extremity. Examination revealed good strength with some limitation secondary to pain on hip flexion. A July 22, 2008 VA record noted that the Veteran had previously worked as a bus driver but had not worked since his December 2007 VA back surgery. The Veteran was in discomfort and was experiencing tightness in his back. The record reflected that the Veteran would use a cane anytime he left the house. An August 2008 VA neurological record indicated that the Veteran had not received any substantial relief of his back and leg pain following his surgery. Examination revealed that his incision was well-healed. The examiner described the Veteran's employability, in pertinent part, as follows: I also think it would be reasonable for [the Veteran] to return to work in a light duty capacity. I think that his restriction will be that he will need a job where he does not have to sit or stand for prolonged periods. He could alternate between the two. I know this will be a difficult thing to find. However, I think that the ability to change positions frequently is probably an excellent idea for him. In a November 2008 letter the Veteran indicated that he had to resign from his job as a bus operator, one year "shy" of retirement. A January 2009 VA (QTC) mental health disorders examiner noted that the Veteran was angry that he was unable to work and had not worked since his December 2007 VA surgery due to back problems. A July 2009 VA (QTC) examiner indicated that the Veteran's walking was unsteady and that he required a cane for ambulation. The record indicates that the Veteran has shown the need for post-surgical convalescence for three months beyond March 1, 2008, due to severe postoperative residuals. In particular, the Board can find no indication that from March 1, 2008 through May 31, 2008 the Veteran was able to perform regular weight-bearing. While VA records dated in April 2008 did note that the Veteran had improved posture, it appears from the evidence of record that the Veteran was not able to ambulate without a cane through at least July 22, 2008; and that thereafter he needed a cane anytime he left the house. This indicates that while his condition was improving, there continued to be weight-bearing problems indicative of persistent severe residuals. In addition to reviewing the severity of a Veteran's postoperative residuals following surgery, evidence that the Veteran would not return to a state of health sufficient for employment is a factor to be taken into consideration when evaluating a claim under 38 C.F.R. § 4.30. Felden, 11 Vet. App. at 430-31. Indeed, under VA regulations, disability compensation is generally based on the level of impairment of a Veteran's earning capacity. 38 C.F.R. §§ 3.321(b)(1), 4.1. Even assuming that the August 2008 VA neurology examiner's comments could be read in a way that indicated the Veteran was able to be gainfully employed as of August 2008, there is no such opinion or similar evidence indicating that the Veteran was able to work at anytime for the three months following March 1, 2008. This finding, in the Board's view, is essentially confirmed by the RO's October 2009 decision that awarded the Veteran entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In the October 2009 decision, the RO indicated that the Veteran's unemployability was basically due solely to his low back condition, and did not appear to attribute his unemployability to other service-connected disability such as his knee or psychiatric condition. Thus, even if the Veteran attempted to return to work in November 2008 (as apparently interpreted by the RO after receiving an August 2009 VA Form 21-4192 submitted by the Veteran's former employer), the evidence does not show that the Veteran was able to work, as a result of his back condition, prior to August 2008. Upon resolution of all reasonable doubt in favor the Veteran and based on the evidence demonstrating employment difficulties and indicating severe postoperative residuals following December 2007 surgery, the Board finds that the Veteran has shown that he necessitated a three-month extension of his temporary total rating from March 1, 2008 through May 31, 2008. The practical effect of this decision is that the Veteran will now be in receipt of a three month extension (March 1, 2008 through May 31, 2008) beyond his initial temporary total rating that was in effect from December 3, 2007 and terminated on March 1, 2008. Requests for further extensions of 1 or more months, up to 6 months, must be approved by the Veterans Service Center Manager and can not be adjudicated by the Board at this time (38 C.F.R. § 4.30(b)) and is addressed in the remand portion of this decision. ORDER A temporary total rating extension through May 31, 2008, but not beyond that date, is granted, subject to laws and regulations governing monetary awards. REMAND While the Board has granted the Veteran a three-month extension of his temporary total rating, the three-month extension granted through May 31, 2008 does not represent the maximum extension time period available. As such, the Veteran's claim remains in appellate status and is characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran has demonstrated that he has required convalescence following his December 2007 low back surgery through May 31, 2008. Whether he is entitled to additional extensions of his temporary total rating may not be initially addressed by the Board but is left to the Veterans Service Center Manager as directed by 38 C.F.R. § 4.30(b). As such, the Board finds that the AOJ should refer this matter to appropriate personnel for consideration pursuant to 38 C.F.R. § 4.30(b). The Board observes that a review of the record reveals that no additional evidentiary development is necessary at this time in order to allow VA to fulfill its duty to assist the Veteran. Accordingly, the case is REMANDED for the following action: 1. The AOJ should forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond May 31, 2008 of a temporary total rating for convalescence following low back surgery in December 2007 under 38 C.F.R. § 4.30(b). 2. Thereafter, adjudicate the issue of entitlement to an extension beyond May 31, 2008 of a temporary total rating for convalescence following low back surgery in December 2007 under 38 C.F.R. § 4.30(b). If the benefit sought is not granted to the fullest extent or to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs