Citation Nr: 1533793 Decision Date: 08/07/15 Archive Date: 08/20/15 DOCKET NO. 13-30 977A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a temporary total rating for convalescence following June 2012 surgery. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 12, 2000, to July 28, 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran has established service connection for chronic low back strain as secondary to a service connected right knee disability (which is now rated 0 percent). 2. An unappealed (and now final) April 2014 rating decision denied the Veteran service connection for lumbar spine degenerative disc disease (DDD), degenerative joint disease (DJD), and sacral neural cyst. 3. The Veteran's June 2012 low back surgery (L5, S1, and S2 laminectomies for fenestration, intradural exploration, and primary closure of sacral meningeal cyst with primary closure of cyst wall) was for his non-service-connected low back disability, and not for his service connected low back strain. CONCLUSION OF LAW As the Veteran's June 2012 low back surgery was for nonservice-connected low back disability, and not provided as treatment for his service connected low back strain, the claim for a temporary total rating for convalescence following that procedure lacks legal merit. 38 C.F.R. § 4.30. (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant 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) (2014). There are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Such claims include where, as here, there is no dispute as to the facts, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The U.S. Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, the Board concludes that no further action is necessary under the VCAA, since all evidence needed to adjudicate the claim is in the record. Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate; the analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran was hospitalized by the VA in June 2012 for low back pain and paresthesias in the lower extremities. He was found to have a large sacral cystic lesion causing obliteration of the spinal canal. He underwent L5, S1 and S2 laminectomies as well as fenestration, drainage and intradural exploration of the meningeal cyst. The diagnosis was Nabors type II sacral meningeal cyst. In June 2012, a VA physician noted the Veteran had undergone surgery two weeks earlier and had been placed on full activity restrictions. He placed the Veteran on full restrictions for another two weeks and that he would reevaluate the Veteran's condition at that time. Under 38 C.F.R. § 4.30 , a total rating will be assigned effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release if the treatment of a service-connected [emphasis added] disability resulted 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 wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An April 2014 rating decision denied the Veteran service connection for lumbar spine DDD, DJD and a sacral neural cyst. He did not appeal that decision, and it is now final, and a bar to the benefit sought. The Veteran has referred to a December 2013 statement from Matthew A. Hunt, M.D. in support of his claim. Dr. Hunt stated he had been treated the Veteran since October and had performed low back surgery in November 2013. He commented that while it was difficult to quantify, it was his opinion that there was a high degree of probability (greater than 50 percent) that the need for the Veteran's second surgery [in February 2014] and his current symptoms were exacerbated by recurrent back strains and multiple knee surgeries. Notably, Dr. Hunt did not address whether the June 2012 surgery (which is the focus of this appeal) was for the Veteran's service-connected low back strain. Thus, it is not germane to the only matter currently before the Board. In fact, the Board notes that following VA spine examinations in March 2012 and February 2014, it was concluded that the Veteran's lumbar spine DDD and sacral perineural cyst were less likely as not related to service, to include his service-connected lumbar strain. A regulatory requirement for a temporary total rating based on convalescence is that the surgery following which convalescence was needed must be for a service-connected disability. Here, as the surgery was for disability for which service connection was denied by a final rating decision, there is no legal basis for the assignment of a (temporary total) convalescence rating. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive, it should be denied because of lack of legal entitlement under the law. Accordingly, the Veteran's claim for a temporary total rating for convalescence following June 2012 surgery must be denied. ORDER The appeal seeking a temporary total rating based on convalescence following June 2012 surgery is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs