Citation Nr: 18147832 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 06-12 150 DATE: November 6, 2018 ORDER An extension of a temporary total rating (TTR) based on convalescence following lumbar spine surgery, from August 1, 2010, through November 30, 2010, is granted. REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, for the periods prior to May 17, 2010; from December 1, 2010, through February 21, 2013; from July 1, 2014 to February 12, 2017; and from June 1, 2017, is remanded. FINDING OF FACT After affording the Veteran the benefit of the doubt, his lumbar discectomy with fusion and instrumentation at L4-5 and L5-S1, on May 17, 2010, required convalescence through November 30, 2010. CONCLUSION OF LAW The criteria for an extension of assignment of a TTR from August 1, 2010, through November 30, 2010, based on a need for convalescence following lumbar spine surgery, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1995 to March 1997. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office. In March 2017, the claims on appeal were remanded for additional evidentiary development. The long and complex procedural history as to the current claims was provided in that remand. Moreover, the large amount of pertinent evidence in this case, consisting of both lay and medical evidence, was described. It will not be repeated here. However, all relevant medical and lay evidence, to include such added to the record since that 2017 remand, will be summarized and discussed as appropriate. Further, the Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The claim of entitlement to extension of a TTR under 38 C.F.R. § 4.30 (2018), beyond July 31, 2010, based upon convalescence for service-connected degenerative disc disease (of the lumbar spine/lumbar intervertebral disc syndrome (IVDS). The Veteran contends that an extension beyond July 31, 2010, of his TTR for convalescence following lumbar spine surgery is warranted because his preoperative symptoms were not resolved post-surgery. He never advised his physicians that his preoperative symptoms had resolved after his surgery. His physical therapy did not commence until October 2010, and he did not return to work until December 2010. See his August 2011 notice of disagreement (NOD). Under 38 C.F.R. § 4.30 (2018), a TTR for convalescence 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 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 case, 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) (2018). Total ratings for convalescence may be extended for 1, 2, or 3 months beyond the initial 3 months for any of the three reasons set forth under 38 C.F.R. § 4.30(a). Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made for reasons (2) or (3) under 38 C.F.R. § 4.30(a) (2018). 38 C.F.R. § 4.30(b) (2018). In the present case, the objective medical evidence of record does not indicate the presence of severe postoperative residuals subsequent to July 31, 2010. There is no medical evidence of incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement. 38 C.F.R. § 4.30 (2018). Specifically, the Veteran’s private physician reported in April 2010 that the Veteran was going to have lumbar spine surgery, and that he would be physically disabled for approximately 8 months post-surgery. Records show that the lumbar laminectomy and diskectomy surgery was performed on May 17, 2010. The Veteran was reported as stable and transferred to recovery. Subsequently dated records show that on the day following surgery, the Veteran was prescribed a rolling walker. In a postoperative note of June 15, 2010, the Veteran reported that his preoperative symptoms had improved, but he still had some pain and paresthesias. His incision was well-healed. On July 20, 2010, he still had pain and paresthesias. Neurological exam showed normal strength in the lower extremities. Sensation was intact. It was noted that the Veteran continued to improve. On August 4, 2010, his prognosis was good. The report reflects that the claimant stated that his preoperative symptoms had resolved. He was slowly recovering and would be seen for his second postoperative visit later in August 2010. At that time, he would be given the order to start his physical therapy program which would last approximately 4-6 weeks. On August 24, 2010, findings were essentially unchanged. He continued to recover. In September 2010, the Veteran again reported that his preoperative symptoms had essentially resolved. He denied paresthesias, lower extremity weakness, or urinary symptoms. When seen in September 2010, he had some low back pain and paresthesias. Assessment was to rule out disc disorder of the lumbar region and to rule out foraminal encroachment of the lumbar nerve root. In November 2010, he reported that his preoperative symptoms, to include low back pain, persisted. He denied paresthesias, lower extremity weakness, and urinary symptoms. The examiner noted that the Veteran had done well post-surgery, but he did have mild residual back pain that was likely to improve. His films looked good. On VA examination in October 2010, it was noted that the Veteran had completed his period of convalescence following his May 2010 surgery. He told the examiner that his private physician had told him to do “as little as possible” until June 2010. The Veteran said that his back brace was removed, and he was told he could walk around in August 2010. He denied having any incapacitating flare-ups since the surgery. However, he had problems sitting or standing for longer than 20 minutes. He experienced shooting pains in his bilateral groin, in the anterior thigh, and the posterior left calf. The pain was intermittent (about 12 times per day and lasting 5 to 10 minutes). He experienced a paresthesia-type tingling in the plantar surface of the left foot involving the toes. The right lower extremity had anterior lightning bolt pains. In December 2010, it was noted that he continued to experience lumbar radiculopathy and low back pain with spasms. As noted earlier, in his August 2011 NOD, the Veteran reported that he returned to work in December 2010. In January 2011, he was back at work, but getting a statement from the VA physician as to his low back and leg pain, so that he would meet the requirements at his work place to order him a chair with lumbar support. On January 19, 2011, a VA report reflects that the Veteran had initial improvement following his lumbar surgery but in August 2010, he started getting shooting pains down his anterior thighs. The Veteran was assessed with chronic low back pain that was stable although he had extensive hardware in place. This was the reason for his pain. While the initial post-surgery reports reflect good results with resolution of preoperative symptoms, he did experience worsening of his symptoms as summarized above. The Board finds that the evidence is at least in equipoise and shows that his May 2017 lumbar spine surgery resulting in moderate to severe low back pain with spasms and radiculopathy, necessitated convalescence following surgery, until he returned to work approximately in December 2010. See 38 C.F.R. § 4.30(a), (b)(1) (2018); see Seals v. Brown, 8 Vet. App. at 296097; Felden v. West, 11 Vet. App. 427, 430 (1998). Therefore, the Board is affording the Veteran all reasonable doubt and granting an extension of a TTR from August 1, 2010, through November 30, 2010. This represents the maximum period permitted under the regulation for postsurgical convalescence under 38 C.F.R. § 4.30(a)(1). REASONS FOR REMAND The claim of entitlement to a TDIU, to include on an extraschedular basis, for the periods prior to May 17, 2010; from December 1, 2010, through February 21, 2013; from July 1, 2014 to February 12, 2017; February 21, 2013; and from June 1, 2017July 1, 2014, is remanded. This claim was remanded by the Board in March 2017 for additional evidentiary development, to include examination of the Veteran and review of the record. The examiner was requested to fully describe the functional effects of the Veteran’s service-connected back and lower extremity neurological disabilities during relevant periods under consideration. The examiner was requested to describe (for each period) what types of employment activities would be limited because of the service-connected back and lower extremity neurological disabilities, what types of employment would not be limited (if any), and whether any limitation on employment was likely to be permanent. The requested VA examination was conducted in June 2017. Following evaluation of the low back and the lower extremities, the examiner diagnosed IVDS with radiculopathy of the lower extremities. In response to the Board’s questions regarding limitation of employment activities (as described above), the examiner provided the following: Post-operatively, from May 2010 to August 2010, and post-operatively from April 2014 to July 2014, he would not have been able to do bending, stooping or lifting more than 5lbs [sic], sitting would be limited to 1 hour at a time with ample opportunity for standing, he would be unable to operate a vehicle, with no limitation for handling small objects. However, whether the Veteran was unemployable during the periods when he was not in receipt of a total temporary convalescent rating.is not clear. Review of the record reflects that the Veteran was experiencing back and lower extremities symptoms during the periods which were not addressed. Thus, the opinion is inadequate to address the TDIU claim on appeal. Specifically, there is no actual discussion as to the time period prior to May 2010, the time period from August 1, 2010, through February 21, 2013, or the period from July 1, 2014, except in the most general way. As the Board is addressing whether a TDIU is warranted for those periods specifically, an addendum opinion is necessary. Moreover, the TTR has been extended herein. Also, in a June 2018 rating decision, a TTR was assigned effective February 13, 2017, based on lumbar spine surgery or other treatment necessitating convalescence. This was followed by a 40 percent evaluation from June 1, 2017. Also, the noncompensable rating in effect for the right lower extremity decreased sensation was increased to 10 percent, effective June 21, 2017. Since these developments, the claim for a TDIU (as to the periods on appeal) has not been readjudicated. Any grant of an increased rating or service connection claim could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran’s overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment notes and associate them with the claims file. Moreover, invite the Veteran to identify any additional medical providers who treated him for his service-connected low back or lower extremities conditions. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Thereafter, forward the entire claims file to the individual who conducted the June 2017 VA lumbar spine and peripheral nerves examinations (or, if that individual is not available, to another appropriate examiner) for an addendum report regarding the following with respect to the TDIU claim: Based on examination of the record (and reexamination of the Veteran only if deemed necessary), the examiner should fully describe the functional effects of the Veteran’s service-connected disabilities during relevant periods under consideration-- prior to May 17, 2010; from December 1, 2010 through February 21, 2013; from July 1, 2014 to February 12, 2017; and from June 1, 2017. It is emphasized to the examiner that each period under consideration must be specifically discussed. If neither disability, alone, is deemed to functionally render the Veteran unemployable for any period, the physician must consider and discuss the combined effects of the disabilities on his ability to perform the physical acts required for gainful employment for each such period. In particular, for each period, the examiner should describe what types of employment activities would be limited because of the service-connected back and lower extremity neurological disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. In addressing the above, the physician should consider and discuss all pertinent medical and other objective evidence, and all lay assertions. The examiner should take into consideration the Veteran’s level of education, special training, and work experience, but not his age or any level of impairment cause by nonservice-connected disabilities. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Thereafter, if the Veteran does not meet the schedular threshold criteria for a TDIU for any of the periods in question, and there is evidence of unemployability due to service-connected disabilities, refer the TDIU issue to VA’s Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) (2018). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith