Citation Nr: 1751090 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-13 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a temporary total evaluation for convalescence following cervical spine surgery on January 14, 2008. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served on active duty service from December 1960 to December 1968. This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia (hereinafter referred to as the Agency of Original Jurisdiction (AOJ)). In relevant part, the November 2011 rating decision denied the Veteran's claim for entitlement to a period of convalescence, citing his failure to timely apply for this benefit within one year following his January 2008 surgery. In February 2017, the Board found that the AOJ had erred in finding that the Veteran did not timely apply for a period of convalescence following his January 2008 surgery. Specifically, the Board observed that the Veteran had notified the AOJ of his intent to apply for a period of convalescence in August 2008. The Board then remanded the claim for further development. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's underwent surgery for his service-connected cervical spine disability on January 14, 2008, necessitating three months of convalescence. CONCLUSION OF LAW The criteria for entitlement to a temporary total evaluation based on convalescence from January 14, 2008, to April 14, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Temporary total disability ratings for convalescence are governed by 38 C.F.R. § 4.30. Under this regulation, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that 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. 38 C.F.R. § 4.30(a) (Effective as to outpatient surgery March 1, 1989). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a temporary total evaluation for three months of convalescence following surgery for his service-connected cervical spine disability on January 14, 2008. As noted above, the AOJ initially denied the claim, finding that the Veteran had not timely applied for a period of convalescence following his January 14, 2008, surgery. See e.g. November 2011 Rating Decision. In the February 2017 remand, the Board determined that he had made timely claim. Specifically, the Board observed that the Veteran had submitted copies of his surgical treatment in August 2008, which should have been interpreted as an informal claim for entitlement to a period of convalescence. See 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). In addition to finding that the Veteran had timely applied for the benefit, the Board remanded the appeal to the AOJ for further development. Specifically, the Board directed the AOJ to contact the Veteran to determine the date on which he returned to work following his January 14, 2008, surgery. The Board notes that the Veteran did not provide the requested information; however, the other evidence of record still establishes entitlement to the benefit sought on appeal. The available evidence shows that the Veteran was admitted for surgery on January 14, 2008. See Saint Joseph's Hospital Records. At that time, he underwent a C4-C5, C5-C6, and C6-C7 total laminectomy and bilateral wide C4-C5, C5-C6, and C6-C7 foraminotomies and application for mm fat pad graft. The Veteran remained hospitalized for post-operative care until January 16, 2008, when he was discharged home. In addition to this surgical report, the records from Saint Joseph's Hospital include a signed employee status waiver, which states the Veteran will be absent or excused from work for a period of three months. This evaluation was signed by the Veteran's long-time physician and surgeon, Dr. P. J. Despite the January 2008 surgical report and the signed work absentee form, the AOJ has continued to deny the Veteran's claim. Most recently, in the June 2017 Supplemental Statement of the Case, the AOJ cited to statements that the Veteran made during a February 2017 evaluation for his service-connected posttraumatic stress disorder (PTSD). Specifically, the AOJ denied the Veteran's claim, finding that his February 6, 2008, statement implied he was only on sick leave "[that day]" but would have otherwise been in the office, had it not been for "tornados that hit the south last night." See Tallahassee VAMC Records, dated February 6, 2008. However, the AOJ appears to have misread that statement. The exact line, as written by the psychologist, states that the Veteran "is very irritable and agitated today since they called him from the office even though he is on sick leave due to the tornados that hit the south last night." The Board observes that the Veteran was employed with the Federal Emergency Management Act (FEMA) and that his title at the time of this February 2008 note was that of an emergency operator. See August 2008 Application for entitlement to a total disability rating based upon individual unemployability due to service-connected disease or injury (TDIU). Thus, the Veteran's report to his psychiatrist on February 6, 2008, appears to suggest that he was frustrated that he was called by his employer regarding an ongoing emergency in the south even though he was on sick leave recovering from his January 2008 surgery. The Board finds further support for this interpretation in the observations made by the February 2008 psychiatrist. Specifically, in this February 6, 2008 note, the Veteran was noted to be in extreme pain and wearing a cervical collar. The psychiatrist also reported that the Veteran was very uncomfortable and not sleeping well due to his pain. The psychiatrist further reported that the Veteran continued to be unable to take his medication for PTSD, as he was still being prescribed antibiotics and pain medications for his January 2008 surgery. Furthermore, the Board notes that the United States 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. See Felden v. West, 11 Vet. App. 427, 430 (1998) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)). The Court has indicated that consideration should be given to notations in the medical record concerning the Veteran's incapacity to work after surgery when evaluating a claim. See e.g. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). For these reasons, the Board finds that the Veteran is entitled to a temporary total evaluation for a three month convalescence period from January 14, 2008, to April 14, 2008. ORDER A temporary 100 percent evaluation based on surgical treatment necessitating convalescence is granted for surgery from January 14, 2008, to April 14, 2008, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ J.W ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs