Citation Nr: A21018115 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 200402-79727 DATE: November 10, 2021 ORDER Entitlement to an effective date of September 29, 2017, but no earlier, for the assignment of a temporary total rating based upon thoracolumbar spine surgical or other treatment necessitating convalescence is granted. Entitlement to a temporary total 100 percent rating based upon thoracolumbar spine surgery with severe postoperative residuals for the period from September 29, 2017, through August 7, 2018, is granted. Entitlement to an effective date of September 29, 2017, but no earlier, for the grant of special monthly compensation (SMC) based upon statutory housebound status is granted. Entitlement to SMC based upon statutory housebound status for the period from September 29, 2017, through August 7, 2018, is granted. FINDINGS OF FACT 1. The Veteran was admitted to the hospital on September 29, 2017, and underwent surgery on October 5, 2017, which resulted in severe postoperative residuals that necessitated convalescence. 2. The Veteran underwent surgery in October 2017, which resulted in severe postoperative residuals through August 7, 2018. 3. From September 29, 2017, the Veteran met the schedular criteria for SMC based upon statutory housebound status and needs SMC housebound benefits due to his service-connected disabilities. 4. The Veteran met the schedular criteria for SMC based upon statutory housebound status and needs SMC housebound benefits due to his service-connected disabilities through August 7, 2018. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 29, 2017, but no earlier, for the assignment of a temporary total rating for thoracolumbar spine surgical or other treatment necessitating convalescence have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.30. 2. The criteria for an extension of a temporary total rating from February 1, 2017, through August 7, 2018, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.30. 3. The criteria for an effective date of September 29, 2017, but no earlier, for the assignment of SMC based upon statutory housebound status have been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.350, 3.352. 4. The criteria for the assignment of SMC based upon statutory housebound status from September 29, 2017, through August 7, 2018, have been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.350, 3.352. INTRODUCTION The Veteran served honorably on active duty in the United States Navy during the Peacetime, from August 1975 to August 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, following issuance of a February 2020 Statement of the Case (SOC), the Veteran opted-in to the Appeals Modernization Act (AMA) system of review by timely submitting his Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and selecting the Evidence Submission review option, whereby additional evidence may be submitted within 90 days following receipt of his VA Form 10182. 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.303. Finally, please note this appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an effective date of September 29, 2017, but no earlier, for the assignment of a temporary total rating based upon thoracolumbar spine surgical or other treatment necessitating convalescence is granted. On October 23, 2017, the Veteran filed his Application for Disability Compensation and Related Compensation Benefits seeking entitlement to "a temporary total disability rating relative to back surgery of October 5, 2017." The November 2017 Rating Decision on appeal granted the Veteran a temporary rating of 100 percent effective October 5, 2017, based upon surgical or other treatment necessitating convalescence. Thereafter, the Veteran timely appealed, inter alia, the effective date for the assignment of the temporary 100 rating. The general rule is that the effective date of an award is the date that the claim was received by VA or the date that entitlement arose, whichever is the later date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(a). However, VA regulations also provide for a temporary total disability rating (100 percent) effective the date of admission to a hospital, as established by a hospital report, and continuing for one, two, or three months from the first day of the month following discharge from the hospital under various circumstances, including a surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. In this matter, the medical evidence of record documents the Veteran was admitted to the VA medical center (VAMC) on September 29, 2017, complaining of chronic knee and leg pain and weakness. The Veteran remained in-patient and, ultimately, underwent surgery involving a T11-12 laminectomy/discectomy via transpedicular decompression, posterior instrumentation and fusion at T10-L1, and exploration of a fusion mass on October 5, 2017. The Board notes the provisions of 38 C.F.R. § 4.30 make clear that the temporary total rating cannot begin prior to the date of hospital admission. As such, there is no legal basis for the grant of an effective date earlier than September 29, 2017, under the provisions of 38 C.F.R. § 4.30. Based upon the foregoing, the Board finds the proper effective date for the assignment of the Veteran's temporary total rating is September 29, 2017, but no earlier. Entitlement to a temporary total 100 percent rating based upon thoracolumbar spine surgery with severe postoperative residuals for the period from September 29, 2017, through August 7, 2018, is granted. Notwithstanding the foregoing, the November 2017 Rating Decision on appeal assigned the Veteran a temporary total rating based upon thoracolumbar spine surgical or other treatment necessitating convalescence effective October 5, 2017. According to the Rating Decision, effective February 1, 2018 (i.e., "the first day of the month following a 3-month convalescence period"), the Veteran's service-connected thoracolumbar spine disability rating is 40 percent. The Veteran is seeking an extension of the temporary total rating past January 31, 2018. According to the Veteran's attorney, the Veteran "required convalescence following the October 2017 surgery, up to and beyond the August 8, 2018 revision to T9-L1 decompression and fusion," and that "his convalescence was additionally complicated by infection that necessitated the need for removal of all hardware, antibiotic treatment, reinstrumentation, and therapy." Indeed, the Board observes an October 2018 Rating Decision assigned the Veteran another temporary total rating effective August 8, 2018, based upon surgical or other treatment necessitating convalescence. Under 38 C.F.R. § 4.30, a total disability rating (100 percent) 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 this section 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. Under 38 C.F.R. § 4.30(a), 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); and (3) Immobilization by cast, without surgery, of one major joint or more. The temporary total rating will be followed by an open rating reflecting the appropriate schedular evaluation. A temporary total rating may be extended as follows: (1) extensions of 1, 2, or 3 months may be made beyond the initial 3 months under all three provisions identified above; and (2) extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under only the "surgery with severe postoperative residuals" and "immobilization by cast" provisions. 38 C.F.R. § 4.30 (b). The Court has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. See Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). As discussed above, the Veteran was admitted to the VAMC in September 2017 and, ultimately, underwent surgery involving a T11-12 laminectomy/discectomy via transpedicular decompression, posterior instrumentation and fusion, and exploration of a fusion mass on October 5, 2017. The Veteran was not discharged from the VAMC until October 18, 2017. However, in November 2017, the Veteran returned to the VAMC due to worsening back pain. He was admitted and spent approximately one month (i.e., November 1, 2017, to November 27, 2017) in-patient, during which time he underwent irrigation and debridement of the thoracolumbar spine. The Veteran was again admitted for a day to the VAMC in December 2017. CT imaging dated April 2018 revealed, inter alia, "progression of lucency around the T10 and T11 screws bilaterally with surrounding perivertebral inflammation," as well as a fracture "noted through the posterior elements of T10 on the left." Further, according to the CT imaging a superimposed infection could not be excluded. A VAMC infectious disease consult was conducted in July 2018. According to the consult note, the Veteran has "chronic spine infection with infected hardware" treated with suppressive antibiotics. A VA orthopedic spine surgeon reported in July 2018 that the Veteran will require revision of the thoracic decompression with possible removal of hardware with staged re-instrumentation, and an infectious disease note indicates he was utilizing a wheelchair. The Board observes the Veteran was again admitted to the VAMC on August 8, 2018, for revision surgery. Additionally, the Board notes the Veteran was granted entitlement to a total disability rating based upon individual unemployability (TDIU) effective May 24, 2016. See Seals, 8 Vet. App. 291; Felden, 11 Vet. App. at 430. In light of the foregoing probative evidence, the Board finds an extension of the Veteran's temporary total rating through August 7, 2018 (the day before the assignment of a subsequent temporary total rating), is warranted in accordance with 38 C.F.R. § 4.30(a)(1), based upon his service-connected back disability resulting in surgery with severe postoperative residuals. Entitlement to an effective date of September 29, 2017, but no earlier, for the grant of SMC based upon statutory housebound status is granted. Entitlement to SMC based upon statutory housebound status for the period from September 29, 2017, through August 7, 2018, is granted. An award of special monthly compensation based on housebound status requires that the Veteran have a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This permanently housebound requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As noted above, the Veteran became entitled to a temporary total rating (100 percent) due to back surgery resulting in severe postoperative residuals effective September 29, 2017, through August 7, 2018. For the same period of time, the Veteran has additional service-connected disabilities independently rated at 60 percent or greater. In the November 2017 Rating Decision on appeal, the RO granted SMC based upon the Veteran's October 2017 back surgery. The effective date assigned to the temporary total evaluation based upon his October 2017 back surgery is September 29, 2017. As a result, the earliest the Veteran met the schedular criteria for SMC based upon the statutory housebound criteria is the date of hospital admission, September 29, 2017. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1). Further, through August 7, 2018 (the day before the assignment of a subsequent temporary total rating), the Veteran met the schedular criteria for SMC based upon the statutory housebound criteria. In sum, the Board finds the most probative evidence of record establishes the Veteran became entitled to SMC based upon the statutory housebound criteria effective September 29, 2017, and continuing through August 7, 2018. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.