Citation Nr: 20021365 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-34 674 DATE: March 25, 2020 ORDER Entitlement to an extension of temporary total rating beyond January 3, 2019, based on the need for convalescence following cervical spine surgery on June 18, 2018 is denied. FINDING OF FACT The January 2018 cervical spine surgery did not result in doctor-mandated convalescence; severe postoperative residuals beyond the period assigned; or an incompletely healed surgical wound, a stump of a recent amputation, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for continued use of a wheelchair or crutches beyond January 3, 2019. CONCLUSION OF LAW The criteria for entitlement to an extension of a temporary total rating for convalescence from a lumbar spine surgery beyond January 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.30 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June to September 1992 and June 2007 to June 2008 in the United States Army. Entitlement to an extension of temporary total rating beyond January 3, 2019, based on the need for convalescence following cervical spine surgery on June 18, 2018 is denied. The Veteran underwent cervical spine surgery in on June 18, 2018. The Agency of Original Jurisdiction (AOJ) initially assigned a temporary total rating from June 18, 2018 to October 1, 2018, after which a 10 percent rating was effective. In a June 2019 rating decision, the rating for the cervical spine disability was increased to 20 percent, effective October 1, 2018, based in part on findings from a January 2019 VA examination. In an October 2019 rating decision, the temporary total rating was extended to January 3, 2019, after which the 20 percent rating was effective. The rationale was that the temporary total evaluation for surgery should have been continued until the date of the VA examination (January3, 2019) that showed an increased rating was warranted. A total rating for convalescence is assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted 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 cast, 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. A total rating may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section. (2) Extensions of 1 or more months up to 6 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) The Veteran’s treatment records show he underwent cervical spine surgery on June 18, 2018. A July 2018 note detailing a follow up consultation noted the Veteran was “doing very well and has minimal to no complaints.” The temporary total rating was initially assigned to October 1, 2018 (which is almost 3 months after the surgery), and then extended to January 3, 2019, which is more than 6 months after the June 2018 surgery. The Board finds that the criteria for an extension of a temporary total rating beyond January 3, 2019 have not been met. The Veteran’s treatment records show that a month after he underwent surgery he was doing well and had minimal complaints, if any. There is no evidence, nor has there been any assertion, of a need for convalescence or any applicable postoperative residuals beyond January 3, 2019. Rather, the only statement from the Veteran on the matter is found in the notice of disagreement, specifying only that the Veteran is seeking a temporary total rating period that extended to July 18, 2019, one year from the date of the surgery. See 38 C.F.R. § 4.30. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and an extension of the temporary total evaluation for cervical spine surgery is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.