Citation Nr: 1605817	
Decision Date: 02/16/16    Archive Date: 03/01/16

DOCKET NO.  12-05 894	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an extension of a temporary total evaluation beyond September 30, 2011, based on the need for convalescence following left rib resection surgery associated with service-connected thoracic outlet syndrome on July 6, 2011.

2.  Entitlement to an extension of a temporary total evaluation beyond December 31, 2011, based on the need for convalescence following left rib resection surgery associated with service-connected thoracic outlet syndrome on July 6, 2011.


REPRESENTATION

Veteran represented by:	John P. Dorrity, Agent


ATTORNEY FOR THE BOARD

Scott W. Dale, Counsel

INTRODUCTION

The Veteran served on active duty from June 1993 to April 1997.  
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which determined that the Veteran's temporary total evaluation would cease on September 30, 2011.  The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review.  Jurisdiction of the Veteran's claim currently resides in the VARO in Buffalo, New York.  

In March 2013 and January 2014, the Board remanded the Veteran's appeal for further evidentiary development.  With regard to the benefits granted below, there has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).  

The issue of entitlement to an extension of a temporary total rating, based on the need for convalescence following the July 6, 2011, surgery, beyond an initial period of six months, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  

Additional Note

In September 2012, the Veteran filed a claim for Special Monthly Compensation (SMC) at the Housebound rate based, partly, on the assignment of the temporary total evaluation assigned pursuant to the period of convalescence following the July 6, 2011, left rib resection surgery.  To that extent, that claim was and is inextricably intertwined with the current appeal.  In an October 2012 Decision Review officer (DRO) decision, the RO granted this claim, to the extent that the temporary total evaluation was in effect at that time - until September 30, 2011.  

As explained below, the Board is partially granting the Veteran's appeal by extending the temporary total evaluation for an additional 3 months, and remanding the matter of further extension for development.  As such, upon implementation of the Board's allowance and readjudication of the remanded portion of the Veteran's appeal, his prior claim of entitlement to SMC at the Housebound rate should be readjudicated for the period from October 1, 2011, until whenever it is found that the temporary total evaluation should be discontinued.  This matter is REFERRED to the AOJ for development and adjudication in the first instance.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's July 6, 2011 left rib resection surgery required convalescence for a period of at least six months.


CONCLUSION OF LAW

The criteria for the assignment of a temporary total rating through December 31, 2011, based on the need for convalescence following the Veteran's left rib resection surgery on July 6, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.30 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims entitlement to an extension of a temporary total rating based on convalescence due to left rib resection surgery performed on July 6, 2011.  The Veteran essentially claims that the temporary total rating should be extended for the maximum time period allowable under the applicable law because he continues to experience post-surgical residuals to the present, to include left wrist drop, an inability to straighten the fingers of his left hand, decreased grip strength and dexterity in his left hand, and neuropathy and muscle atrophy of his left arm, wrist, and hand.  

As an initial matter, because the Board is granting the benefit sought on appeal to the full extent possible under 38 C.F.R. § 4.30 and remanding the remaining matter for further consideration, the Board finds that any error related to the VCAA is moot at this point.  See 38 U.S.C.A. §§ 5103 , 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103  , (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

A temporary total disability rating of 100 percent will be assigned from the date of hospital admission and continue for a period of one, two, or three 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 rituals, 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.  38 C.F.R. § 4.30(a) (adding that reductions in temporary total ratings are not subject to the requirements set forth in 38 C.F.R. § 3.105(e)).  An extension of one, two, or three months of a temporary total disability rating may be granted based on the factors enumerated above.  38 C.F.R. § 4.30(b)(1).  Extensions of one to six months beyond the initial six-month temporary total disability rating may be made upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30(b)(2).

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."  See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining "recovery" as "the act of regaining or returning toward a normal or healthy state"). 

The Veteran underwent left rib resection surgery for his service-connected left thoracic outlet syndrome on July 6, 2011 at a Centrastate Medical Center.  In October 2011 rating decision, a temporary total evaluation based on surgery necessitating convalescence was assigned to the Veteran's left thoracic outlet syndrome from July 6, 2011, the date of the surgery, to September 30, 2011.  A 30 percent evaluation for Veteran's left thoracic outlet syndrome was assigned effective October 1, 2011. 

As noted, 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 the treatment that led to convalescence.  Here, the treatment occurred on July 6, 2011.  Thus, the RO essentially granted a temporary total as of the date of the surgery, and pursuant to these provisions, granted a 3 month period of convalescence, beyond that. 

For the reasons stated below, resolving reasonable doubt in favor of the Veteran, the Board finds that an extension of the total disability rating to a full six months beyond the treatment at issue, based on convalescence following surgery, is warranted.  

Pertinently, a May 2014 VA opinion, obtained under the directives of the Board's January 2014 remand, reflects that, subsequent to and resulting from the July 2011 left rib resection surgery, the Veteran experienced ulnar neuropathy with numbness in his left arm (described on EMG as severe/incomplete paralysis) requiring physical and occupational therapy, a post-operative wound infection/abscess that required multiple, daily drainings and dressing changes "for several months.  Additionally, the Veteran experienced muscle atrophy of the left arm, wrist, and hand, causing severely decreased grip strength and loss of dexterity in the left hand which necessitated use of a custom made hand brace for 10 months to treat his wrist drop and inability to straighten his fingers.  

The examiner also noted the Veteran's occupation as an office worker, tasked with typing, answering phones, and filing.  It was noted that the Veteran reported being able to with only one hand for "about 1 year" due to the surgery, which greatly affected his ability to do his job.  Because of the post-operative residuals, the Veteran had to change his job description and functions to be "more as a receptionist" until he was able to adequately perform the functions of his prior job again.  

The Board finds the May 2014 VA opinion to be highly probative, as the examiner reviewed the full record prior to offering the opinion, and because the information conveyed is consistent with the private treatment records outlining the severe post-operative residuals and resulting functional impairment experienced by the Veteran for at least six months after the July 2011 surgery.  

The Board notes that there are several other VA examinations and opinion of record dated prior to May 2014 which assess the residuals of the July 2011 left rib resection surgery and the need for subsequent convalescence.  However, as noted in the March 2013 and January 2014 Board remands, these VA examinations and opinions are inadequate for evaluating the issue on appeal because of a lack of specificity and incongruence with the residuals and functional impairment shown in the post-operative private treatment records from Ivyrehab Network, Inc., St. Barnabas Hospital, and Jersey Shore Neurology Associates.  For these reasons, the Board concludes that the May 2014 VA opinion is the most probative evidence of the issue presented on appeal.  

In sum, the evidence shows that the Veteran's July 6, 2011, left rib resection surgery necessitated at least six months of convalescence following surgery.  See 38 C.F.R. § 4.30(a), (b)(1).  Thus, as the RO already granted a temporary total starting the date of treatment in July through the month of September, the Board is granting an extension of a temporary total rating from October 1, 2011, through December 31, 2011.  As stated above, requests for further extensions of one or more months, up to six months, must be approved by the Veterans Service Center Manager and therefore cannot be adjudicated by the Board at this time.  See 38 C.F.R. § 4.30(b).  Accordingly, the Veteran's request for a further extension of a temporary total rating based on convalescence is addressed in the remand portion of this decision.


ORDER

An extension of temporary total rating based on convalescence following left rib resection surgery, from October 1, 2011, to December 31, 2011, is granted, subject to the laws and regulations governing monetary awards.


REMAND

While the Board has granted the Veteran an initial total disability rating for a period of three months for his left thoracic outlet syndrome, this does not represent the maximum extension time period available.  As such, this issue remains in appellate status, particularly where, as here, the Veteran has asserted that he is entitled to a temporary total evaluation for the maximum time period allowable under the law. 

As noted by the Board in the January 2014 remand, pursuant to 38 C.F.R. § 4.30(b)(2), the question of whether the Veteran is entitled to an additional extension of his temporary total disability rating beyond the initial six-month period may not be addressed by the Board in the first instance.  Instead, an extension of one to six months beyond the initial six-month period may only be made upon approval of the Veterans Service Center Manager.  See 38 C.F.R. § 4.30(b)(2).  

To the extent that the Board directed this action in the January 2014 remand, there is not substantial compliance, and another remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).  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)(2) .

Accordingly, the case is REMANDED for the following actions:
 
1.  The AOJ should forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following left rib resection in July 2011 under 38 C.F.R. § 4.30(b).
 
2.  Thereafter, adjudicate the issue of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following left rib resection surgery in July 2011 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 agent should be furnished with 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 Veteran 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 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 2014).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals