Citation Nr: 1805762	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-07 161A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for degenerative disc disease/degenerative joint disease of the lumbosacral spine prior to January 8, 2014, and to a rating in excess of 20 percent thereafter.

2.  Entitlement to a rating in excess of 10 percent for residuals meniscectomy left knee with narrowing of the joint space.

3.  Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome with narrowing of the joint space.

4.  Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy.

5.  Entitlement to a rating in excess of 10 percent for cervical strain syndrome.

6.  Whether the claim of entitlement to a temporary total disability rating based on the need for convalescence for lumbar spine surgery was timely submitted.

7.  Entitlement to a total disability rating based on individual unemployability (TDIU). 

8.  Entitlement to a combined disability evaluation in excess of 60 percent from January 8, 2014.

9.  Entitlement to service connection for right lower extremity radiculopathy.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

R. E. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from October 1971 to October 1991.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2010 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.   

All issues, other than the issue of whether the claim of entitlement to a temporary total disability rating based on the need for convalescence was timely submitted, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Veteran underwent lumbar spine surgery at a non-VA facility on June 23, 2008. 

2.  The Veteran's claim for entitlement to a temporary total rating based on convalescence, following the June 2008 surgery, was received by VA on July 13, 2009.


CONCLUSION OF LAW

The Veteran's submission of a claim of entitlement to a temporary total evaluation based on convalescence for lumbar spine surgery at a private facility was not timely.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With regard to whether the claim for a temporary total evaluation based on convalescence for lumbar spine disability was timely, as shown below the facts are not in dispute and the claim is barred as a matter of law.  The Veterans Claims Assistance Act of 2000 (VCAA) is therefore inapplicable to this claim.  See 38 C.F.R. § 3.159 (d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).

The Board finds that it is unnecessary to obtain the Veteran's Social Security Administration (SSA) medical records prior to adjudicating whether the Veteran's claim for a temporary total rating was timely.  As detailed below, this case turns on the date the Veteran submitted his claim for a temporary total rating.  There is no reasonable possibility that records from the SSA could substantiate the claim, and therefore, a remand on this issue is to be avoided.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (providing that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

The Veteran is seeking a temporary total rating for convalescence following lumber spine surgery performed at a non-VA facility in June 2008.  As reflected in a January 2014 statement of the case (SOC), the Veteran's claim was denied in a July 2010 rating decision based on a finding that the claim for 38 C.F.R. § 4.30 benefits had been submitted more than one year after he underwent lumbar spine surgery in June 2008.

Under 38 C.F.R. § 4.30, a temporary total rating for convalescence may be assigned effective from the date of hospital admission and continue for 1, 2, or 3 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 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.  

The Board notes that, for any award of VA benefits, an effective date for the award of such benefits must be determined by VA decision makers.  The applicable effective date for an award is determined by the nature of the particular benefit being awarded.  As a general rule, the effective date is the date of receipt of a claim or the date entitlement to a benefit arose, whichever is later, unless otherwise provided.  Generally, the effective date of an award cannot be earlier than the date of receipt of the application therefor.  See 38 U.S.C. § 5110  and 38 C.F.R. § 3.400. 

Effective dates for temporary total ratings are governed by the increased rating provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o).  The statute and the regulation applicable to effective dates for awards of increased compensation provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later date.  38 C.F.R. § 3.400(o)(1).  An exception to this general rule exists, however, for awards of increased compensation in certain circumstances.  If the evidence demonstrates that an increase in disability occurred within the one year period preceding the date of receipt of a claim for increased compensation, the increase is effective as of the earliest date the increase in disability was factually ascertainable.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007).

During the period of this appeal, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. 

Moreover, if a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of a VA examination or VA hospitalization can be accepted as an informal claim for benefits.  As to reports prepared by private physicians or laypersons, if such evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits, the date of receipt of the report is accepted as the date of receipt of the informal claim.  38 C.F.R. § 3.157. 

The Veteran's claim for temporary total rating due to surgery was received by VA on July 13, 2009.  The Veteran reported that his operation was on June 15, 2008.  With his claim he submitted a private medical record indicating that the surgery was performed on June 23, 2008.  The Board notes that subsequent to the 2008 private lumbar spine surgery and prior to the July 13, 2009 claim for a temporary total rating, only one document was received from the Veteran, a VA Form 21-22, Appointment of Veteran's Service Organization as Claimant's Representative.  There is no document indicating that the Veteran was claiming a temporary total rating due to convalescence.  The Board further notes that a claim for an increased rating for a lumbar spine disorder was not pending during the year following the lumbar spine surgery.  

In this case the first document that can be considered a claim for a temporary total rating was received more than a year after the lumbar spine surgery at the private facility.  As noted above, the effective date regulations preclude the assignment of a temporary total rating under 38 C.F.R. § 4.30 if the claim for such benefits is received more than a year after the private medical treatment.  Consequently, the Veteran's claim was not timely and the claim for a temporary total rating based on convalescence must be denied.

 
ORDER

The Veteran's claim of entitlement to a temporary total rating following lumbar spine surgery in June 2008 was not timely submitted and the appeal is denied.


REMAND

In May 2013 the Veteran reported that he had been awarded Social Security Administration disability benefits.  Although he submitted some SSA records, he did not submit a copy of the award or the complete medical records upon which the award was based.  The Veteran's claims must be remanded so that these records may be obtained, and associated with the Veteran's claims file.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992).

The Veteran's most recent VA examinations of the knees and cervical/lumbar spine were performed in January 2014 (Examination reports are located in Virtual VA).  These VA examinations did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016).  In Correia, the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  As the January 2014 VA examination reports do not provide all of the information specified by Correia, these claims must be remanded for new VA examinations to obtain the information necessary to properly adjudicate the claims.

The Veteran asserts that VA miscalculated his combined service-connected disability evaluation that has been in effect since January 8, 2014.  He maintains that his combined disability evaluation should be 70 percent from that date.  This claim must be remanded because this issue is inextricably intertwined with the increased rating issues that have been remanded, and they must be considered together.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the instant claims.

2.  Request, directly from the SSA, complete copies of any determination on the claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim.  All records/responses received should be associated with the claims file.  If records are unavailable, SSA should so indicate.  The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  When the above actions have been completed, afford the Veteran an appropriate VA examination to assess the manifestations of the Veteran's lumbar and cervical spine disabilities.    

With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions.  If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so.

4.  When the actions of paragraph 1 and 2 above have been completed, afford the Veteran an appropriate VA examination to assess the manifestations of his left and right knee disabilities. 

With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions.  If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so.

5.  When the actions of paragraph 1 and 2 above have been completed, afford the Veteran an appropriate VA examination to assess the manifestations of his left lower extremity radiculopathy disability.  Also determine if the Veteran has right lower extremity (RLE) radiculopathy.  If RLE radiculopathy is found, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) such RLE radiculopathy is caused or aggravated by any of the Veteran's service-connected disabilities.   

6.  When the above actions have been completed, readjudicate all claims remaining on appeal.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran and his representative with a supplemental statement of the case and provide the Veteran with an opportunity to respond in accordance with applicable statutes and regulations.  The case should be then returned to the Board for further appellate review, if otherwise in order.

The appellant and his representative have the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012).



______________________________________________
G. A. WASIK 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs