Citation Nr: 1805823	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-11 950	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a temporary total rating for convalescence for low back disability pursuant to the provisions of 38 C.F.R. § 4.30 (2017).

2.  Entitlement to an increased rating for paraspinal lumbar spasms, currently rated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	Christopher L. Loiacono, Agent


ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

The Veteran served on active duty from September 1978 to August 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

As addressed below, the Veteran underwent a VA examination in June 2015 which has not been initially reviewed by the RO; however this examination pertains to the increased rating matter and not the temporary total rating matter.  Accordingly, the Board will proceed with review of the latter issue. 

The issue of entitlement to an increased rating for paraspinal lumbar spasms is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran is service-connected for paraspinal lumbar spasms.

2. The Veteran required convalescence for symptoms due to lumbar herniated discs/retrolisthesis.

3.  The need for convalescence was unrelated to service-connected paraspinal lumbar spasms.



CONCLUSION OF LAW

The criteria for a temporary total evaluation for convalescence, pursuant to the provisions of 38 C.F.R. § 4.30, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.30 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran has not alleged any notice or development deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Temporary Total Rating

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 entitlement is warranted under paragraph (a)(1), (2) or (3) of this section 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 such hospital discharge or outpatient release.  38 C.F.R. § 4.30.

A total rating will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence (effective as to outpatient surgery March 1, 1989); (2) surgery with severe post-operative 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; or (3) immobilization by cast, without surgery, of one major joint or more (effective as to outpatient treatment March 10, 1976). 38 C.F.R. § 4.30 (a). Extensions of 1, 2, or 3 months beyond the initial 3 months may be made by applying the same criteria.  38 C.F.R. § 4.30 (b)(1). Extensions of one or more months up to six months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30 (b)(2).  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.  Recovery is defined as the act of regaining or returning toward a normal or healthy state.  Felden v. West, 11 Vet. App. 427, 430 (1998).  The Court has held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30.  Id.; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995).  Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery.  Felden, 11 Vet. App. at 430. 

Private medical notations from September to November 2012 reflect that the Veteran was unable to work due to back pain.  Additional private records dated through January 2013 show that the Veteran reported that his original back injury occurred during service and that he had low back pain.  The provider also noted that the Veteran had degenerative disc disease.  The Veteran related that he did not feel able to work.  In a subsequent medical statement, Dr. T.G.R. indicated that the Veteran was totally disabled due to his back disability.  He indicated that the Veteran's low back pain began in the military.  The physician indicated that the Veteran had disc disease, lumbar disc degeneration, and the clinical record showed treatment for its symptoms.  This provider did not address that the Veteran was only service-connected for paraspinal muscle spasms and not for disc disease.

The Veteran and his wife then submitted statements attesting to the progressive nature of his back pain which impeded his activities and ability to work.

In March 2013, the Veteran was afforded a VA examination.  The examiner indicated that the Veteran did not have muscle spasms on examination and his paraspinal lumbar spasms had resolved.  The examiner noted that a 2012 magnetic resonance imaging (MRI) showed lumbar disc herniation L4-S1 and retrolisthesis of L5-S1 which represented new findings when compared to an earlier 2008 MRI which showed a mild disc bulge at L5-S1 which extended into anterior epidural space, but without compression of thecal sac; mild facet hypertrophy at L5-S1 causing mild foraminal narrowing.  The examiner noted that the Veteran's current symptoms were from disc herniation, but not from lumbar spasms.  In conclusion, the examiner indicated that the Veteran currently had a diagnosis of lumbar disc herniation which was a separate condition from his service-connected paraspinal muscle spasms.  The examiner stated that current medical literature does not support that lumbar muscle spasms cause herniated discs later in life.  The current abnormal examination findings and symptoms were secondary to his nonservice-connected lumbar herniated discs/retrolisthesis.  

The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998).  The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, Dr. T.G.R. confirmed that the Veteran was impaired due to his disc disease of the lumbar spine.  Although he noted that the Veteran had experienced back pain since service, he identified the current disability and its symptoms as being degenerative disc disease.  The physician did not address that the Veteran was only service-connected for lumbar spasms and not the disc disease.  As such, the probative value of this opinion is diminished.  Conversely, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The examiner addressed both the service-connected back disability and its residual symptoms (of which there were none) as well as the current diagnosis of disc disease and its current symptoms.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate factual background of the disabilities at issue.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  

The Board has considered the opinions of the Veteran and his wife that his current symptoms are related to his service-connected low back disability.  However, as lay persons in the field of medicine, the Veteran and his spouse do not have the training or expertise in medical matters and this issue involves a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Thus, the opinions of the Veteran and his spouse are outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).  In determining the weight assigned to the evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Black v. Brown, 10 Vet. App. 279, 284 (1997).

Thus, while the Veteran may require convalescence due to back symptoms, those symptoms are not related to the Veteran's service-connected paraspinal lumbar spasms, but are instead related to a nonservice-connected low back disability.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


ORDER

Entitlement to a temporary total rating for convalescence for low back disability pursuant to the provisions of 38 C.F.R. § 4.30 (2017) is denied.



REMAND

Increased Rating

In June 2015, the Veteran underwent a VA examination.  Under the provisions of 38 C.F.R. § 20.1304, evidence received at the Board must be returned to AOJ for initial consideration, unless the Veteran waives his right to have the evidence initially considered by the AOJ.  38 C.F.R. § 20.1304.  Moreover, subsequent to this examination, the Court held in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) that to be adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The VA examination did not address passive motion.  Further, in Sharp v. Shulkin, 29 Vet.App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up.  In light of the foregoing and the fact that the June 2015 examination report does not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on his claim.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature and extent of the service-connected paraspinal lumbar spasms disability.  The examiner should review the record prior to examination.  The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ).  The DBQ should be filled out completely as relevant.

The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself.  The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares.  The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so.

Any opinions expressed by the examiner must be accompanied by a complete rationale. To the extent possible, the examiner should identify and distinguish all symptomatology due to the Veteran's service-connected paraspinal lumbar spasms disability from that due to other nonservice-connected low back disability.  If this is not possible, the examiner should so indicate and provide an explanation for his or her conclusion.

2.  Review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

3.  Readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal which addresses all evidence including the June 2015 examination and evidence obtained pursuant to this Remand, and afforded a reasonable period of time within which to respond thereto.

The Veteran has 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).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs