Citation Nr: 20022564 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-29 543 DATE: April 1, 2020 ORDER Entitlement to a finding of total disability rating based on individual unemployability (TDIU) prior to December 14, 2011, is granted. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 based on surgical or other treatment necessitating convalescence for service-connected low back disability is denied. FINDINGS OF FACT 1. The Veteran raised unemployability in connection with his low back disability claim and met the criteria for TDIU effective August 1, 2010. 2. The evidence does not show that the Veteran’s April 5, 2011, low back surgery required a period of convalescence in excess of one month or resulted in severe post-operative residuals. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to December 14, 2011, have been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2019). 2. The criteria for a temporary total rating based on convalescence for the April 5, 2011, low back surgery have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1981 to September 1993, April 1996 to September 1996, from February 2008 to April 2009, and from August 2009 to July 2010. These matters come to the Board on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019 at which time it was remanded for additional development. During the pendency of the appeal, a November 2019 rating decision granted service connection for low back disability. This action constitutes a full grant of the benefit sought. The Veteran has not yet filed a notice of disagreement concerning the initial rating assignment of effective date and the matter is not on appeal. In addition, a January 2020 rating decision granted entitlement to TDIU effective December 14, 2011, the date that VA received the Veteran’s formal application for TDIU. However, the Veteran raised unemployability in connection with his claim for service connection for low back disability, which was subsequently granted and assigned an initial 10 percent rating effective August 1, 2010. Accordingly, the matter of entitlement to a TDIU prior to December 14, 2011, remains on appeal. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Appropriate notice was provided in March 2013; a December 2019 VA letter requested that the Veteran complete and return releases for private medical treatment records, to which the Veteran did not respond. The Board’s July 2019 remand directive has been completed. The RO associated the Veteran’s service, VA, and private treatment records with the claims file. Social Security Administration records were also obtained and associated with the record. The Veteran was asked to provide releases to obtain any relevant private treatment records, but he did not respond to VA’s request. Remand for any further development of records is not required. VA satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). TDIU As noted above, the Veteran raised unemployability due to his low back disability as the appeal for a claim for service connection for low back disability was pending; in June 2019 the Board noted these issues were intertwined. A November 2019 rating decision granted service connection for a low back disability and assigned an initial 10 percent rating effective August 1, 2010. However, the January 2020 rating decision assigned an effective date of December 14, 2011, when the Veteran’s TDIU application had been received by VA. Because the Veteran raised TDIU in connection with his low back disability, the Board must consider entitlement to a TDIU prior to December 14, 2011. The Board finds that TDIU is warranted effective August 1, 2010, the date upon which service connection was granted for his low back disability. 38 C.F.R. § 4.16 (2019). The TDIU claim was pending from that date, and the RO has found that the service-connected disabilities as of that date render the Veteran unemployable. Indeed, in the Veteran’s application for TDIU, he noted that he had stopped working on August 1, 2010 and he first met the percentage requirements at that time. Id. There is no formal or informal claim for TDIU prior to that date and August 1, 2010, is the earliest possible effective date for the award of TDIU.   Entitlement to a temporary total rating due to surgery for a service-connected low back disability requiring convalescence A total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2) or (3) of 38 C.F.R. § 4.30 effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Total ratings will be assigned under this section 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. The U.S. Court of Appeals for Veterans Claims has defined convalescence as “the stage of recovery following an attack of disease, a surgical operation, or an injury” and recovery as “the act of regaining or returning toward a normal or healthy state.” Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland’s Illustrated Medical Dictionary 374 (28th ed. 1994) and Webster’s Medical Desk Dictionary 606 (1986)). The Veteran contends that he should be entitled to a 100 percent rating for a period of convalescence following his April 5, 2011, low back surgery. In September 2011, in connection with his claim for a temporary total rating, he stated that he was unable to work as a result of his surgery and was undergoing physical therapy. A November 2010 private treatment record noted that the Veteran would undergo a two-level transforaminal lumbar interbody fusion (TLIF) from the left at L4-5 and L5-S1. The physician indicated that he discussed recovery time, but did not specify the amount of recovery time. A March 29, 2011, preoperative assessment shows that the Veteran reported pain in the back and down his right thigh that was getting worse. The Veteran underwent low back surgery on April 5, 2011. He was discharged on April 7, 2011. The Veteran started physical therapy on April 6, 2011. The physical therapy note indicated that the Veteran would use a rolling walker as an assistive device at home and a time frame of three to four days was listed. An April 18, 2011, private treatment record shows that the Veteran returned for an incision check. Since the surgery, the Veteran reported that he was sore in his back, but felt that the back pain was different and likely to work for him. The incisions were clean and intact and appeared to be healing well. It was noted that the Veteran was doing well and would follow-up in four to five weeks. An August 2011 private treatment record stated that the Veteran underwent a fusion about four months ago and that hardware placement was apparently fine but that he had complications of a slow healing graft. It was noted that he had severe back pain. The evidence does not show that the Veteran’s low back surgery required a period of convalescence greater than one month and the medical records do not mention a specific period of recovery or convalescence. While the Veteran continued to have back pain and symptoms, the evidence does not reflect 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, the necessity for house confinement, the necessity for continued use of a wheelchair or crutches or immobilization by cast, without surgery, of one major joint or more. While the August 2011 private record indicated that the Veteran had a complication with a slow-healing graft, the Board finds that this was not identified as a severe complication of his surgery. Though the Veteran complained of severe back pain in August 2011, that was four months after his surgery and prior to that time, he had indicated that his back was doing better. The record also shows that the Veteran had a post-surgical, short-term need for a rolling walker, but the evidence fails to show that this amounts to severe postoperative residuals as required by the regulation. There is no evidence that he required a walker for a prolonged period. In addition, an April 2011 VA examination report indicates that the Veteran used a cane for his back pain, but the Board does not find that this is a severe post-operative residual as contemplated by the regulation and its examples of continued use of a wheelchair or crutches. The Board recognizes the Veteran’s statement that he required convalescence and could not work due to his April 2011 surgery. However, the Board notes that the Veteran also reported that he was not working prior to April 2011 due to his back pain and had not yet had his surgery. Though the Veteran is competent to report observable symptoms such as pain and limited mobility and he has some medical knowledge as shown by his military occupational specialties as a health care specialist and medical specialist and his civilian job as a paramedic, his statements requesting convalescence are not adequate to determine that he required convalescence of a month or more. Further, he has not identified that he had severe postoperative residuals resulting from his April 2011 surgery. The Veteran was provided the opportunity to identify relevant medical records and did not do so. Accordingly, as the preponderance of the evidence is against the claim, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Finally, the Board notes the Veteran’s representative’s argument that he should be referred for extra-schedular consideration under 38 C.F.R. § 3.321. However, there is no indication in the rating schedule that a claim for a temporary total rating for convalescence may be referred for an extra-schedular rating. The provisions of 38 C.F.R. § 4.30 state that a total rating will be assigned “without regard to other provisions of the rating schedule.” The Board finds that extra-schedular referral is not possible in this case. Further, the matter of an increased rating for his low back disability is not before the Board at this time. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.