Citation Nr: 1808059 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a temporary total evaluation following surgery on May 29, 2012, for service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1996 to December 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's May 29, 2012, surgery did not require hospital treatment for a period in excess of 21 days or one month of convalescence and did not result in severe postoperative residuals or immobilization by cast of one or more major joints. CONCLUSION OF LAW The criteria for a temporary total evaluation for a May 29, 2012, surgery for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.29, 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has 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 Under 38 C.F.R. § 4.29, a temporary total, or 100 percent rating is assigned when it is shown that a service-connected disability has required hospital treatment in a VA or VA-approved hospital for a period in excess of 21 days. This is true regardless of whether the hospital admission was for a service-connected disability, as long as hospital treatment for a service-connected disability is instituted and continued for a period of 21 days. 38 C.F.R. § 4.29(b). Under 38 C.F.R. § 4.30, a temporary total evaluation is established when a disability, subject to VA compensation required surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. The Veteran has contended that he is entitled to temporary total rating for a surgery he had on May 29, 2012, for his service-connected lumbar spine disability. He is currently assigned an evaluation of 40 percent for his degenerative disc disease of the lumbar spine. Prior to the surgery on May 29, 2012, the Veteran was assigned an evaluation of 40 percent from December 1998 until May 23, 2011, when he was assigned a temporary total evaluation following back surgery. The evaluation of 40 percent resumed on August 1, 2011, and was continued until March 3, 2014, when he was assigned another temporary total evaluation of 100 percent following surgery. On May 1, 2014, the 40 percent evaluation was continued. A VA report of hospitalization shows that the Veteran was admitted on May 29, 2012, with a diagnosis of lumbar radiculopathy and discharged on May 30, 2012. A right L5-S1 discectomy was performed due to recurrent pain he was having since May 2011, when this procedure was previously performed. The May 30, 2012, discharge summary from the Milwaukee VA Medical Center (VAMC) indicated that the Veteran did well postoperatively and was ambulating on the day of the surgery. The discharge summary included planned discharge orders, which indicated that the Veteran was to be discharged home and that his condition was stable. His diagnosis was status post redo right L5-S1 discectomy with low back pain and right lower extremity radiculopathy. He was instructed to be on a regular diet, to not lift more than 10 to 15 pounds, to not drive, and to not engage in excessive bending, twisting, pushing, and pulling. No other restrictions were provided. During a June 2012 follow-up appointment, approximately three weeks after the surgery, the Veteran reported that he was "doing ok." He continued to report having numbness in his thighs which pre-dated his May 2012 surgery. Although he reported having back pain after his surgery, he did report that the pain had improved within the last week. During a subsequent June 2012 appointment, the Veteran reported having had intermittent headaches which did not improve. Radiology reports were negative for any abnormalities. During an August 2012 follow-up appointment, the Veteran reported that he worked full-time doing electrical assembly. He reported having an occasional back ache when standing for too long. He continued to have numbness and tingling in his left thigh, but was taking medication for it. During an October 2012 appointment, the Veteran reported recurrent numbness in his right extremity, but did not report any immobilization or difficulties ambulating. During the June 2017 hearing, the Veteran reported that he was unable to function for 30 days following his surgery. He indicated that his doctor had set his recovery time around June 2012, but that it had taken him longer to recover. He reported difficulties with putting on his shoes and clothes and noted that he had been undergoing physical therapy at the time of his June 2012 follow-up appointment. He stated that he returned to work in July 2012, but did not think he was working full-time because he had physical therapy. The Veteran could not recall if his doctor told him to return to work after a certain period of time; however, he did note that his doctor did not prescribe any bed rest for him following his surgery. After reviewing the evidence of record, the Board finds that the Veteran does not meet the criteria for a temporary total evaluation under 38 C.F.R. §§ 4.29 or 4.30. The VA hospitalization report clearly shows that the Veteran was admitted on May 29, 2012, and discharged on May 30, 2012, which was less than 21 days. Thus, § 4.29 is inapplicable. With regard to 38 C.F.R. § 4.30, the record shows that the Veteran's May 29, 2012, surgery did not require a month of convalescence. The discharge summary did not indicate that the Veteran needed to be on bed rest, nor was he given any other restrictions that significantly limited him. Although the Veteran was restricted from driving, he was not confined to his home. Nor was he restricted from going anywhere through other means of transportation. The record also does not reflect that the Veteran was immobilized, had any severe postoperative residuals, or that he was required to use a wheelchair or crutches. See 38 C.F.R. § 4.30(a)(2). The Board does note that, during the June 2017 hearing, the Veteran reported that he was unable to function for 30 days after his surgery. However, as noted in the VA clinical record of the June 2012 follow-up appointment, which was less than 30 days after the surgery, the Veteran reported that he was doing fine. Furthermore, the Veteran could not recall, nor does the record reflect, any additional restrictions issued by the doctor with regard to recovery. The Board also notes that the Veteran resumed working in July 2012, less than two months after his surgery. Therefore, the Board finds that the Veteran does not meet the criteria for a temporary total evaluation for his May 29, 2012, surgery under 38 C.F.R. § 4.30. In reaching this determination, the Board acknowledges that the Veteran reported he was unable to resume working after his surgery until July 2012. However, during that period of time, he was assigned a 40 percent evaluation for his service-connected low back disorder which represents the average impairment in earning capacity. See 38 C.F.R. § 4.1. There is also no indication that any physician placed a work restriction on him. Accordingly, the assignment of a temporary total evaluation is unwarranted for the Veteran's May 29, 2012, surgery for his low back disorder. ORDER A temporary total evaluation following surgery on May 29, 2012, for service-connected degenerative disc disease of the lumbar spine is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs