Citation Nr: 1326600 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-16 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an extension beyond November 30, 2007, of a temporary total rating for convalescence following surgery to treat the Veteran's service-connected lumbar spine disability, pursuant to 38 C.F.R. § 4.30 (2012). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In May 2010 the Veteran testified at a hearing before a Decision Review Officer. In March 2011 the Veteran testified before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the claims file. The issue of entitlement to an increased rating for degenerative joint disease L5-S1 facets bilaterally and congenital spondylolisthesis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran underwent lumbar spine surgery on July 20, 2007, and consequently required a period of convalescence afterwards. 2. He resultantly was awarded a temporary total (100 percent) rating for his lumbar spine disability effective from July 20, 2007 to November 30, 2007 whereupon, as of December 1, 2007, a 10 percent rating for his degenerative joint disease L5-S1 facets bilaterally and congenital spondylolisthesis was awarded. 3. It has been shown the Veteran needed additional convalescence from December 1, 2007 to January 31, 2008. CONCLUSION OF LAW The criteria are met for extension of the temporary 100 percent convalescent rating from December 1, 2007 to January 31, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Under the Veterans Claims Assistance Act of 2000, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The pertinent law, regulations, and caselaw have held that VA 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. This notice should be provided prior to initial adjudication of the claim. In the present case, the Veteran was sent a letter in November 2008 which identified the evidence necessary to support his claim, as well as the evidence VA would attempt to obtain and th evidence or information he needed to provide. This letter was sent prior to the April 2009 rating decision on appeal. Thus, the Board finds that there is no error in the timing of the notice. The Board also concludes VA's duty to assist has been satisfied with respect to the claim on appeal. The claims file includes VA treatment records and the transcripts of the Veteran's personal hearings, as well as the evidence which the Veteran has identified as relevant to his appeal. He has reported that he received only VA treatment during the relevant period at issue. The Veteran has also been afforded ample opportunity to submit any additional relevant evidence in his possession or otherwise request VA to obtain specifically referenced records on his behalf. Lastly, the Board has also reviewed the Veteran's records in VA's Virtual VA electronic database for any pertinent clinical records. II. Chapter 30 Benefits The Veteran underwent lumbar spine surgery in July 2007. At issue in this decision is the temporary total rating following his July 20, 2007 surgery. He was initially awarded a 100 percent rating from July 20, 2007 to October 31, 2007, after which a 10 percent evaluation was awarded. See September 2007 rating decision. However, a December 2007 rating decision granted a one month extension of the temporary evaluation of 100 percent effective November 1, 2007; a 10 percent evaluation was awarded for his lumbar spine disability effective December 1, 2007. As discussed below, the Board finds that a temporary total disability rating is warranted for the additional period of time from December 1, 2007 to January 31, 2008. 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 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. The termination of total ratings under this section are not subject to the notice and other procedural requirements under 38 C.F.R. § 3.105(e). An extension of 1, 2, or 3 months beyond the initial 3 months may be granted based on the factors enumerated above, and extensions of one or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (2012). As discussed, the Veteran underwent lumbar spine surgery on July 20, 2007. An October 2007 VA treatment record noted that the Veteran could return to work as of October 20 since this would be his three month anniversary date of his surgery. It was noted that if there was any way the Veteran could either use an assistive device or get help with larger packages he should do so in order to avoid extra risk for adjacent level disease. A November 2007 VA treatment record noted that the Veteran had been evaluated. It was noted that the Veteran's job involved lifting loads as large as 100 pounds. The note reflects that the Veteran's physician was recommending that he have a functional capacity evaluation, which would determine the maximum load that he could safely lift/haul. It was specifically noted that until that evaluation was completed the Veteran "should be considered on disability." A Functional Capacity Evaluation was not completed until the January 13, 2008. It was determined at that time that the Veteran's prior employment as a warehouse worker or as a handler of large appliances exceeded his current physical capabilities. Evaluation results indicated that his current physical capacities generally lay within the sedentary level of physical demand. Taking into account that the November 2007 VA medical note indicated the Veteran was to be considered disabled until a functional capacity evaluation was completed, and the fact that this was not done until January 2008, the Board finds that a temporary total evaluation extension is warranted from December 1, 2007 to January 31, 2008. 38 C.F.R. § 4.30. The Board notes that the Veteran has argued he is entitled to a temporary total evaluation through February 2009. However, as noted in the January 2008 functional capacity evaluation it was determined that he was able to perform sedentary employment at that time. There is additionally no indication in any of the Veteran's treatment records that his surgery resulted 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) such that an extension beyond January 31, 2008, is warranted. The Board acknowledges that treatment records in the file in August 2008 reflect that the Veteran was not able to work as an employee who loads trucks and does heavy lifting on a regular basis. The Board has thus referred a claim for an increased rating for his service-connected lumbar spine disability, as noted above. In this case, although the Veteran might have continued to miss work following January 2008, the evidence does not show that he was incapable of working after January 31, 2008. The Board emphasizes that 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. In summary, the Board finds that an extension of Chapter 30 benefits is warranted through January 31, 2008, but no later. ORDER Entitlement to a temporary total rating from December 1, 2007 to January 31, 2008, under 38 C.F.R. § 4.30 for convalescence following lumbar spine surgery is granted, subject to the applicable regulatory provisions governing payment of monetary awards. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs