Citation Nr: 1807693	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  11-31 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to a temporary total disability evaluation based on treatment for a service-connected disability necessitating a period of convalescence.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Parsons, Associate Counsel


REMAND

The Veteran served on active duty from April 1970 to May 1970, from February 1973 to July 1975, and from April 1977 to December 1977.

This matter comes before the Board of Veterans' Appeals on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a June 2015 videoconference hearing.  A transcript is of record.

In an April 2016 decision, the Board denied entitlement to a temporary total disability based on treatment for a service-connected disability necessitating a period of convalescence.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2017, the Court issued an order granting the parties' Joint Motion for Remand (Joint Motion) to vacate the Board's April 2016 decision on this claim and remanded the case to the Board for compliance with the Joint Motion.

The Board, in its April 2016 decision, also remanded the issue of entitlement to an increased rating for a service-connected lumbar spine disability.  In April 2016, while the issue was on remand, the Veteran withdrew this claim.  Accordingly, the issue is no longer on appeal and the Board does not have jurisdiction over it.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

The Joint Motion ordered the Board to consider whether a medical opinion is necessary to estimate the amount of time required for the Veteran's recovery, and, if so, obtain the medical opinion from either the Veteran's attending surgeon, assisting neurosurgery resident, or another qualified medical professional.  To accord the Veteran every possible consideration, a medical opinion addressing the amount of time required for his recovery after surgery should be obtained.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file all relevant VA treatment records from the Birmingham VAMC and all associated outpatient clinics from May 2015 to the present.

2. Contact the Veteran in writing and advise him that he may submit any statements from physicians or medical records relevant to this claim.

3. Obtain a VA medical opinion from the Veteran's attending surgeon, Dr. Winfield Fisher, his assisting neurosurgery resident, Dr. Thomas Whisenhunt, or, only if Dr. Fisher or Dr. Whisenhunt are unavailable, another qualified medical professional, to determine the amount of time required for the Veteran's recovery (return to a healthy or normal state) following his January 22, 2010 surgery.

All opinions are to be accompanied by a rationale consistent with the evidence of record.

4. The AOJ should then readjudicate the claim.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case.

The appellant has the right to submit additional evidence and argument on the matter 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).


_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).