Citation Nr: 20007879 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 10-39 170 DATE: January 30, 2020 ORDER Entitlement to a 100 percent convalescent rating following December 2008 back surgery is denied. FINDING OF FACT The evidence does not show that the Veteran required convalescence following surgery for a service-connected disability. CONCLUSION OF LAW The criteria for basic eligibility for a service-connected disability for VA convalescence benefits under the provisions of 38 C.F.R. § 4.30 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from June 1985 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision by a regional office (agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before a Veterans Law Judge in November 2012. This matter was remanded for further development in January 2015 and has been returned to the Board for adjudication. Entitlement to a 100 percent convalescent rating following December 2008 lower back surgery The Veteran underwent back surgery in December 2008, specifically a microdiscectomy, hemilaminectomy and foraminotomy to correct a significant herniation of the L4-L5 disc. He asserts that this surgery was to resolve and treat symptoms due to an aggravation of his pre-existing back disorder He is currently service-connected for chronic low back pain with sciatica and moderately severe limitation of motion of the back, rated at 20 percent disabling. By way of history, the Veteran injured his back during two separate parachute jumps and an automobile accident while in service. He was medically discharged from the Army in September 1987 after a Medical Board determined his back condition would not improve in the short term. The Veteran exhibited decreased range of motion, chronic low back pain and decreased sensation in the L5-S1 dermatomal pattern. Medical records accompanying the Medical Board decision indicate that x-rays including a CT scan, MRI and myelogram results were all within normal limits. Specifically, the myelogram indicated there were no fractures or dislocations and that the intervertebral disc spaces were intact. Medical treatment records from October 2008 indicate that the Veteran was cranking in a hose while standing on his truck and fell backwards onto his back. The Veteran testified at a November 2012 hearing that his back gave out, causing him to fall off of the truck onto his back. He also claimed to have fallen down the stairs at home in March 2008 when his back gave out once again. The Board notes that the Veteran suffered a serious motor vehicle accident in June 2001 in which he broke his ankle, both bones in his lower leg, seven ribs and injured his face but testified that he did not injure his back. October 2008 medical records from a private neurologist that performed the Veteran’s surgery indicate that the Veteran complained of severe back pain with bilateral lower extremity pain since the work accident on October 11, 2008. He denied prior symptomatology and any weakness but noted that he was now no longer able to work because of the back pain. After reviewing imaging results, the neurologist noted broad disc protrusion at L4-L5 and a mild bulge at L5-S1. Records from early December 2008 indicate the neurologist felt that conservative therapy had failed the Veteran and recommended a discectomy and fusion using some type of cage. The Veteran’s neurologist received mid-December correspondence from Summit Workers’ Comp Insurance stating that absent fracture or instability, their medical director would only approve a discectomy. The neurologist’s records indicate that he advised the Veteran to wait for approval from workers compensation before undergoing surgery but that due to the Veteran’s level of pain he wished to proceed. At the November 2012 hearing, the Veteran stated he was hospitalized for one day during the surgery. He also claimed that the Workers Compensation company refused to pay for an additional surgery on his back because they felt his back pain was an aggravation of a preexisting service-related condition. After examining the Veteran and reviewing his records, a private pain management specialist M.D. noted there was no evidence for recurrent or residual disc herniation and that his L5-S1 level looked unremarkable. He opined that the Veteran was capable of performing sedentary type deskwork with a 10 pounds maximum lifting restriction and avoidance of repetitive bending, stooping, squatting and prolonged standing. The Veteran was afforded a VA examination for his back condition in October 2015. He told the examiner that he slipped on a patch of oily ground while reeling in a hose and fell, injuring his back. During this examination the Veteran claimed he suffered compression fractures at the L3-L4, L4-L5 discs and had a partial discectomy in service. He also stated his private neurologist recommended approximately 16 months convalescent leave post-surgery. The VA examiner noted that the Veteran’s spine condition impacted his ability to work with moderate pain on moderate lifting and prolonged standing. The examiner opined that it was less likely as not that the Veteran’s service-connected back disorder was the underlying cause of his December 2008 surgery. Based on service treatment records, the examiner reasoned that the Veteran’s service-connected condition was due to L5-S1 disc herniation, while the December 2008 surgery was performed on the L4-L5 disc. The examiner also stated that post-operative notes indicated the Veteran was cable of performing a modified sedentary type work and there was no documentation of convalescence following the December 2008 surgery. The Veteran was afforded an additional VA examination in August 2019. This VA examiner opined that the Veteran’s lumbar pain and subsequent surgery were due to his October 2008 workplace accident and not his service-connected condition. The examiner noted that the Veteran developed severe lumbar pain after the October 2008 accident but had no other active medical problems prior to that incident, including residuals from falling down the stairs and landing on his back in March 2008. After reviewing the Veteran’s imaging, including the grossly normal imaging obtained by the Army Medical Board, the examiner opined that his degenerative disc disease was more likely related to his age as opposed to his military service. In August 2019, the undersigned Veterans Law Judge requested an expert medical opinion to identify the pathology and symptoms attributable to the service-connected low back disability prior to March 2008 and whether it was at least as likely as not that his service-connected disability was the underlying cause for the surgery. The chief of orthopedic surgery at a VA hospital provided a September 2019 addendum opinion. After reviewing the Veteran’s imaging and medical records, the orthopedist opined that the Veteran’s December 2008 back surgery was not attributable to his service-related back injury. The orthopedist noted the Veteran’s 1987 imaging do not indicate any fracture or other permanent injury. He attributed the development of disc disease and a disc bulge 20 years later as a process of normal aging, especially given the Veteran’s comorbidities of obesity and smoking. Finally, the orthopedist noted that the 2 back injuries sustained by the Veteran in the 6 months prior to surgery were more likely to be the cause of his increased back pain and resultant surgery. VA records from VA medical records from September 2011 note the Veteran’s discectomy in December 2008 but state that “he is exercising on a regular basis, has lost weight and his back is doing better.” This is corroborated by November 2013 VA records that state “he has lost a lot of weight and has been exercising and his back does not bother him much anymore.” The Board notes that the Veteran stated that the workers compensation company refused to pay for further surgeries because they felt his condition was due to a pre-existing disability. He also stated that he suffered compression fractures of two discs and had a partial discectomy in-service. However, the record is silent for evidence of either claim. The August 2019 orthopedist specifically noted no evidence of fracture or other permanent injury in 1987 imaging, and the only relevant correspondence from the workers compensation fund regarded their decision not to authorize a fusion procedure absent evidence of instability or fracture. The Board notes that, in this case, all three expert medical opinions regarding the underlying cause of the Veteran’s December 2008 surgery are in agreement. Furthermore, the Board finds the September 2019 orthopedist opinion highly probative based the scope of the review, qualifications of the examiner and degree of analysis provided. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Veteran has alternately asserted that his October 2008 workplace accident was caused by his back giving out or slipping on a slick patch of ground. Given the conflicting lay statements, the Board gives increased weight to the medical examiner’s opinion that the Veteran’s service-connected condition was not the underlying cause of his December 2008 surgery. The basic eligibility requirement for entitlement to a temporary total disability rating is a service-connected disability that results in a surgery that requires a convalescence period. See 38 C.F.R. § 4.30(a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. “Convalescence” is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury. Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland’s Illustrated Medical Dictionary, p. 374 (28th ed. 1994)). The purpose of a temporary total convalescence evaluation is to aid a claimant during the immediate post-surgical period when he may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. (continued on next page) In light of the foregoing, and after a thorough review of the record, the Board finds that the normal aging process, combined with the injuries received during the Veteran’s two falls within 6 months, are the underlying causes of his December 2008 surgery. Therefore, there is no legal basis for a temporary total disability rating following that surgery, as 38 C.F.R. § 4.30(a) only authorizes payment of compensation for service-connected disabilities. The Veteran’s personal opinion that all his back symptoms are attributable to service-connected origin holds significantly less probative weight than the opinions of medical professions who possess greater training and expertise to evaluate the nature and etiology of an orthopedic disorder. The Board has considered the benefit of the doubt rule, but because the preponderance of the evidence, to include expert medical opinion, weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.