Citation Nr: 1756529	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-04 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an extension of a temporary total evaluation beyond April 1, 2010, because of treatment for the service-connected cervical spine disability that required convalescence.


REPRESENTATION

Veteran represented by:	Mark R. Lippman, Attorney at Law


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to August 1991.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In September 2012 and September 2014, the Board remanded the issue to afford the Veteran a Board videoconference hearing.  In an August 2017 letter, the Veteran and his representative withdrew the request for a Board hearing. 

In November 2017, the Veteran's representative submitted a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of evidence submitted after the March 2013 supplemental statement of the case.  See 38 C.F.R. § 20.1304 (2017).

In October 2017, the Veteran's representative submitted a notice of disagreement with the AOJ's November 2016 notification letter determining that the Veteran's previously submitted notices of disagreement were not timely.  The Veteran's representative also submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).  These issues have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 


FINDING OF FACT

The residuals from the Veteran's December 2009 cervical spine surgery did not necessitate convalescence after April 1, 2010.


CONCLUSION OF LAW

The criteria for an extension of a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30 after April 1, 2010, for cervical spine surgery are not met. 38 U.S.C. §§ 5103A, 5107 (2012); 38 C.F.R. § 4.30 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran and his representative have not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Law and Analysis

According to 38 C.F.R. § 4.30, following discharge from a hospital, a total (100 percent) rating will be assigned from the date of hospital admission and continued 1, 2, or 3 months from the first day of the month following hospital discharge when it is shown that treatment of a service-connected 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 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)(1), (2), and (3). 

The total rating under 38 C.F.R. § 4.30 may be extended for 1, 2, or 3 months beyond the initial 3 months under this section for any of the above listed conditions. See 38 C.F.R. § 4.30(b)(1).  There is also provision for additional extension of the temporary 100 percent rating for 1 or more months up to 6 months beyond the initial 6 month period for conditions listed in subsections (2) and (3) with approval of the Adjudication Officer.  See 38 C.F.R. § 4.30(b)(2).  It is further noted that the effective date for the payment of monetary benefits based on increased award of compensation under 38 C.F.R. § 4.30 may not be made for any period before the first day of the calendar month following the month in which the award became effective.  38 C.F.R. § 3.31 (2017). 

The Veteran underwent a C4-7 laminectomy and C4-6 fusion in December 2009.  In a March 2010 rating decision, the RO granted a temporary evaluation of 100 percent evaluation effective from December 15, 2009, to April 1, 2010, for the Veteran's convalescence.  The RO denied an extension of the Veteran's convalescence period in a January 2011 rating decision.

In April 2011, the Veteran wrote that he was not able to work after a brief period of light duty work because his light duty paper work was not filled out promptly and as a result, his convalescence period should be extended.  He indicated that he exhausted all of his sick leave and was forced to use approximately 6 weeks of annual leave.  The Veteran planned to sell the annual leave back to his employer prior to his retirement.  He contends that his convalescence should be extended to compensate him for the annual leave he was going to sell back prior to his retirement.   

The Veteran's VA treatment records indicate that he was seen for a follow-up visit in January 2010.  He endorsed left shoulder tightness and upper extremity weakness.  His staples were removed without difficulty.  The Veteran was seen again in February 2010 and he indicated that he still had left shoulder tightness and left hand weakness.  In March 2010, the Veteran was re-evaluated.  He indicated minimal pain and right upper extremity stiffness.  R.F., a VA nurse practitioner, indicated that there were no complications with proper alignment and that the Veteran could return to work.  However, he was unable to lift anything above his head.  The Veteran's incision was healing well.  In April 2010, the Veteran was seen again by R.F.  She stated that the Veteran was doing well and that his pain was well-controlled.  He had returned back to work, but was still unable to raise his left upper extremity over his head.  His incision was clean, dry, and intact.  She indicated that once the Veteran had completed physical therapy, she would reevaluate him for full duty work.

In March 2010, the Veteran was granted a light duty assignment by his employer.  He was informed that his light duty assignment would be available until April 29, 2010, and that if he needed light duty following this date, he would need to submit additional documentation from his physician.
An April 2010 private physical therapy progress note indicates that the Veteran was authorized for 6 additional sessions.  The ranges of motion had improved in his cervical spine since his March 2010 visit.  The Veteran was progressing in his therapy.  He had increased functional use of his left upper extremity, but had limited range of motion in his left shoulder that limited his lifting ability.  The Veteran had not reached a level that would allow him to return to work full duty.

In April 2010, the Veteran was afforded a VA examination to determine the severity of his cervical spine disability.  The Veteran reported that he removed his c-collar in March 2009 and was attending physical therapy.  He returned to his job and was working on light duty status.  On examination, the Veteran had a cautious short step gait.  There was tenderness and weakness on the left and right cervical sacrospinalis.  His motor examination demonstrated active movement against full resistance.  Muscle tone was normal and there was no muscular atrophy.  The sensory and reflex tests were also normal.  Ranges of motion for the cervical spine were:  flexion from zero degrees to 35 degrees; extension from zero to 30 degrees; bilateral flexion from zero degrees to 25 degrees; and, bilateral lateral rotation from zero degrees to 35 degrees.  The Veteran's cervical spine disability had a mild effect on his ability to shop, travel, feed, bathe, dress, toilet, and groom himself.  The cervical spine disability had a severe impact on his ability to exercise and had a moderate impact on his recreation.  The cervical spine disability also prevented the Veteran from engaging in sports.  The VA examiner concluded that the Veteran's cervical spine disability caused difficulty lifting, carrying, and difficulty reaching.  There was also decreased strength in the upper extremity and pain.  

In May 2010, the Veteran received a letter from the health unit at his employer informing him that his absences were not approved and he was not cleared to return to work.  He was advised that he had not provided the necessary medical documentation to either continue his light duty assignment or return to full duty.  
The Veteran submitted return to work documents from Dr. A.Y. that were signed in May 2010.  The documentation shows that the Veteran was cleared to return to work on March 29, 2010, with restrictions, and on May 26, 2010, without restrictions.

The evidence is against a finding that further convalescence, such as would result from an incompletely healed surgical wound, prohibition of regular weight-bearing, or immobilization of the neck by cast, was needed by the Veteran after April 1, 2010.  The Veteran was placed on light duty by his employer after his period of convalescence.  The April 2014 VA examination report indicates that the Veteran was able to move his neck.  Reflex, muscle, and sensory testing were normal.  Additionally, the Veteran was not confined to his house.  His cervical spine disability only had a mild effect on his ability to shop and travel.  The Veteran had residual pain and upper extremity weakness that prevented him from lifting his arms above his head but he was able to complete light duty work.   

The Board acknowledges the Veteran's April 2011 contention that he had to use additional annual leave because his medical clearance documents were delayed.  However, the weight of the evidence shows that the residuals of the Veteran's cervical spine surgery did not require additional convalescence.  The medical clearance forms that were subsequently submitted show that the Veteran was cleared to return to work on March 29, 2010, with restrictions, and on May 26, 2010, without restrictions.  

In short, while the contentions of the Veteran have been considered, the Board finds the probative weight of these contentions to be overcome by the VA treatment records, private treatment records, and the April 2014 VA examination report.  Therefore, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7.

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ORDER

Entitlement to an extension of a temporary total evaluation beyond April 1, 2010, because of treatment for the service-connected cervical spine disability that required convalescence is denied.




______________________________________________
DAVID L. WIGHT 
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs