Citation Nr: 1337564 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-08 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an extension of a temporary total disability rating for convalescence following L4-S1 fusion for service-connected lumbar disc disease beyond February 29, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2012, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a rating decision in June 2013, the RO granted service connection for PTSD, assigning a 50 percent rating; service connection for tinnitus, assigning a 10 percent rating; and service connection for hearing loss, assigning a noncompensable rating. In the same decision, the RO denied a claim for service connection for erectile dysfunction and a claim for temporary total disability for convalescence for surgery in February 2012. As the Veteran has not initiated an appeal from any of the actions in the June 2013 rating decision, none have been developed for appellate review by the Board. The Veteran does have the remainder of the one-year period from June 11, 2013, the date the Veteran was notified of the rating decision, to file a notice of disagreement to initiate an appeal. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. FINDINGS OF FACT The competent medical evidence shows that the Veteran's L4-S1 fusion surgery necessitated six months of convalescence; further doctor-mandated convalescence was not demonstrated and the surgery did not result in severe postoperative residuals or immobilization by cast, home confinement, or continued necessity for wheelchair use. CONCLUSION OF LAW The criteria for a temporary total disability rating beyond February 29, 2008 based on need for convalescence following surgical treatment in August 2007 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The Veteran filed a notice of disagreement with the end date assigned for the award - essentially requesting an extension of the temporary total rating. This represents a downstream issue, and additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3); see Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the Veteran's appeal triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105. This was fulfilled when the statement of the case was issued in February 2010. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran a VA examination in February 2008 and a hearing before the undersigned in September 2011. The report of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examination is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (or Decision Review Officer (DRO) as appropriate) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board videoconference hearing the Veterans Law Judge (VLJ) identified the issue as an extension of a temporary total disability rating based upon convalescence and later asked the Veteran what he was not able to do that required convalescence beyond the period already granted by the RO. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, who also asked questions regarding the Veteran's claim that he needed convalescence after February 2008. The Veteran on his own identified additional medical evidence and requested that VA obtain the evidence to help prove his claim. By this statement, the Veteran expressed understanding that entitlement to extension of his temporary total convalescence rating depended upon the evaluations by medical caregivers. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), by identifying the issue, and to the extent the VLJ did not expressly suggest overlooked evidence pertinent to the temporary total disability claim, such error is harmless as both the Veteran and representative also demonstrated actual knowledge of what was needed to prove the claim. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Facts The March 2008 rating decision on appeal originally granted the Veteran a temporary total disability rating for convalescence, pursuant to 38 C.F.R. § 4.30, from August 28, 2007 through September 30, 2007. As a result of a VA examination in February 2008, the RO in the same rating decision assigned a 20 percent rating starting October 1, 2007 for the service- connected lumbar spine disability. A February 2010 RO Decision Review Officer supplemental statement of the case determination extended the temporary total convalescence rating through February 29, 2008. The Board notes that a 20 percent rating for the service-connected lumbar spine disability was also assigned effective from March 1, 2008. The Veteran asserts that the period for a temporary total disability rating for convalescence should be longer. He contends that he should be awarded a temporary total disability rating for convalescence for at least nine months after the surgery. The Veteran underwent L4-S1 posterolateral fusion surgery on August 28, 2007. In September 2007, he ambulated with the aid of a walker and back brace. He had constant aching pain across his lower back but no buttock or leg pain. The incision was healing well without redness, drainage, or tenderness. There was no muscle spasm. The neurological examination did not reveal any abnormalities. The Veteran was directed to continue with the back brace but he could be up and about as tolerated and to pace himself. He was limited to lifting objects to between 8-10 pounds. In October 2007, the Veteran reported the aching pain across the low back had lessened. There were no complaints of pain in the lower extremities. The Veteran had mild tenderness in the left hip area. Otherwise, no abnormalities were noted upon examination. His surgeon recommended that he limit lifting to 10-15 pounds and to continue with the back brace for 4 more weeks. At that time, he could remove the major part of the brace and use the smaller portion. The Veteran was advised to bend from the knees and not the waist. In December 2007, the Veteran still had aching low back pain on the left. He also had left pelvis pain from the graft site but there was no lower leg extremity pain. The surgeon noted he slowly continued to improve. At this office visit, there was no tenderness or muscle spasm. The rest of the examination was normal except the Achilles reflex on the right was absent. At this time, the Veteran's lift restriction was 20-25 pounds for another four weeks and then gradually could be increased as tolerated. Physical therapy was also recommended (three times a week for six weeks). In February 2008, the surgeon was noted it was almost 6 months since the Veteran had the lumbar spine fusion surgery. He complained of residual muscle spasms in the low back but did not have central low back pain on a constant basis. He denied radicular pain. There was a burning pain on both sides of the low back. No tenderness or muscle spasms were elicited upon physical examination and muscle strength, sensation, and reflexes were normal. At this time, the Veteran could do activities as tolerated and instructed to contact the office if there were problems. The Veteran was to continue with home exercise and fitness programs on a daily basis. He was to return in 6 months. In February 2008, the Veteran underwent a VA examination. The examiner described the Veteran undergoing a large fusion from L4 to S1. At that time, he had right radicular pain. He used a back brace and a cane. His forward flexion was to 70 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotational flexion to 15 degrees. While repetition caused the symptoms to increase, no change was noted on the examination. The examination revealed limited decreased sensation over the right foot and a little bit of give-way weakness to dorsiflexion of the right ankle. There had not been any incapacitating episodes in the previous year. The diagnosis was postoperative L4-S1 fusion. In a May 2008 letter from the Veteran's private orthopedist, Dr. M. E. Coggins, it was stated that the Veteran had "extensive lumbar spine surgery and typically patients who do any kind of significant labor work are unable to work for approximately 4-6 months after this type of surgery." If the patient is engaged in non-labor work, the patient often returned to work anywhere from 4-8 weeks after surgery. He thought there was a high likelihood the Veteran would go on to have some chronic and permanent low back pain and discomfort. He noted the Veteran was restricted to a lifting limit of 20-25 pounds until January 2008 but then could increase his activities as tolerated. However, Dr. Coggins noted that the Veteran's condition appeared to be improved compared to his preoperative status and he did not give any specific distinct restrictions to the Veteran when he saw him in February 2008. The only restriction would be a lift limit of no greater than 30-50 pounds. In June 2008, the Veteran reported a sharp, burning pain in the left posterior pelvis which varies in intensity depending in what the Veteran is doing. He also had low back achiness but no radiating leg pain. There was tenderness in the left hip area. The right Achilles reflex was absent. The doctor provided a trigger point injection for the left hip pain. In August 2008, the Veteran complained of aching back pain in the left buttock, which has been a problem since 2002. It did not interfere with his sleep. It was aggravated by twisting to his left, bending forward, standing, and walking. An injection provided relief for 2-3 weeks. Pain medication had a fair effect. The pain was usually an 8/10 and rated as moderate to severe. Functional impairment was moderate and when present, it interferes only with some daily activities. The pain was intermittent. There was no radiating pain, numbness, or tingling. There was tenderness in midline on the incision. The Achilles reflex bilaterally was absent. X-rays were taken of the lumbosacral spine and the impression was a "nice amount" of mature bone graft bilaterally. The hardware remained intact and there was no disc space collapse above the fusion. The Veteran could be as active as tolerated but advised to start slow and work up to regular activity. In October 2008, the Veteran complained of severe burning and achiness in the donor site, the low back, and the left buttock. The pain remained decreased as long as he is not very active and does not walk for prolonged periods. He had a feeling something was crawling up his left leg at times, but no numbness or tingling. He had a good effect from pain medication. Other than mild tenderness off the midline to the left, the examination was normal. The Veteran agreed to a course of epidural injections. A letter from the Veteran's private orthopedist, Dr. Coggins, dated in September 2009 that indicates the estimated recovery time from the lumbar fusion surgical procedure was six to nine months. In August 2010, he was again advised he could be as active as tolerated. In March 2011, he had a history of "surgery which has failed." He continued to experience low back pain bilaterally extending into the buttocks. Pain medication was fairly effective but the Veteran could not stand for a prolonged period of time. It was noted the scar was well healed. The Veteran had a series of epidural injections to the left side of the lower back in January and February 2010 and then to the right side in April 2010. In October 2011 the Veteran underwent surgery to implant a two lead spinal stimulator. This treatment proved to be effective and the Veteran had a second, higher set implanted in February 2012. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of disability which is temporary in nature, such as that period of convalescence following surgery, 38 C.F.R. § 4.30 provides for temporary total disability ratings during convalescence. A total rating will be granted following hospital discharge, 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 if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). This rating will be assigned without regard to other provisions of the rating schedule. Extensions beyond the initial three months may be made for a maximum of one year. 38 C.F.R. § 4.30(b) (2). A temporary total convalescent rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery. 38 C.F.R. § 4.30. Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability, and not rated under 38 C.F.R. § 4.30. 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. See Felden v. West, 11 Vet. App. 427, 430 1998); Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). The 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).) Furthermore, the term "convalescence" does not necessarily entail in-home recovery. At his hearing, the Veteran appears to be arguing that because he still has severe pain and must stop and rest after 20 minutes of activities, he is still in convalescence. As noted above, 38 C.F.R. § 4.30 allows temporary total disability following surgery for a maximum total of one year. Congress enacts federal laws authorizing monetary benefits, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit and the benefit cannot be awarded, regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board may not grant a benefit that the Veteran is not eligible to receive under statutory law. See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). Thus, the issue for the Board is whether the Veteran is entitled to a temporary total disability award for a period greater than the six months awarded, but no more than one year following the lumbar fusion surgery, or until August 2008. Here, private treatment records show the Veteran's service-connected lumbar spine disability required surgical intervention in August 2007. By February 2008, the Veteran continued to experience pain and functional limitation but at that point, his surgeon allowed him to do any activity as tolerated. The only restriction was lifting heavier objects (greater than 30 pounds). The Board therefore finds an extension of the temporary total disability rating beyond February 29, 2008 is not warranted for convalescence following his lumbar fusion surgery. The period of total disability based upon convalescence must be based on more than pain, functional limitation, or continued therapy and follow-up. The Veteran must demonstrate severe post-operative residuals and a period of time needed for convalescence. 38 C.F.R. § 4.30(a). To the extent that the Veteran believes the period of convalescence should last until the therapeutic plan was completed, the rating for convalescence covers only the immediate after effects and residuals related to the surgery itself, not the entire related medical care, therapy, and other related modalities of treatment prescribed by a physician to treat the condition giving rise to the surgery. There is no evidence that he needed a doctor-mandated convalescence beyond February 2008. His physician noted convalescence may take up to 9 months, but as noted, in the Veteran's case, by February 2008, he authorized the Veteran to do any activity as tolerated. There is no statement from the doctor or medical record that he needed 9 months or a year to recover from the effects of the surgery. The evidence does not establish severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair. The surgical wounds are well healed and there is no indication of home confinement or need for a wheelchair. Finally, treatment for the service-connected disability did not result in immobilization by cast of one major joint or more. The treatment records do not reflect evidence of restricted activity or other symptomatology management to suggest continued convalescence. See Felden, 11 Vet. App. at 30 (holding that entitlement to a total disability rating requires that a report, rendered near the time of a hospital discharge or an outpatient release, indicate that a surgical procedure had been performed that would require at least one month for the veteran to return to a healthy state). Absent such findings, the criteria for extending the temporary total rating beyond February 29, 2008, have not been met. The Veteran argues that he has not completely recovered from the August 2007 lumbar surgery based upon his testimony to the severity of his symptoms from the lumbar spine disability following the surgery. For instance, he points to his inability to shovel snow or mow the lawn. The Board has considered his lay statements as to his low back disability and notes that the Veteran also had a VA examination in February 2008 and the RO thereafter in March 2008 rated the disability by the effect the residuals of the surgery had upon his functional impact. See 38 C.F.R. § 4.30 (b). In addition, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder or whether the severity warrants continued convalescence. That involves specialized knowledge or training. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or opinion. Such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the VA examiner, and more importantly, the private medical provider who performed the surgery and provided the post operative care. Both have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated, including the need for continued convalescence. As such, the Board finds these records to be more probative than the Veteran's subjective testimony of increased symptomatology or the need for continued convalescence For the above reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an extension of a temporary total disability rating for convalescence following L4-S1 fusion for service-connected lumbar disc disease beyond February 29, 2008 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs