Citation Nr: 21007097 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-20 203 DATE: February 8, 2021 ORDER Entitlement to an extension of a temporary total evaluation for convalescence following surgery for a service-connected right foot disability to September 23, 2014, but not beyond, is granted. REMANDED Entitlement to service connection for low back strain with degenerative disc disease (DDD) and spondylosis of the L5-S1 thoracic spine (hereinafter “thoracolumbar spine disability”) is remanded. FINDINGS OF FACT 1. The Veteran underwent surgery for his service-connected right foot disability on March 21, 2014. 2. Resolving all reasonable doubt in the Veteran’s favor, his right foot disability required convalescence until September 23, 2014. CONCLUSION OF LAW The criteria for an extension of a temporary total evaluation for convalescence following surgery of the right foot to September 23, 2014, but not beyond, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1993 to January 1997, from April 1999 to April 2002, and from October 2003 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated November 2014 and February 2017 of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. By way of procedural background, in a June 2019 decision, the Board denied entitlement to an extension of a temporary total evaluation for convalescence for the Veteran’s right foot disability from May 1, 2014 onward, and determined that new and material evidence had not been received to reopen the Veteran’s claim for service connection for a thoracolumbar spine disability. The Veteran timely appealed the Board’s June 2019 decision to the United States Court of Appeals for Veterans Claims (Court). By way of a July 2020 Order, the Court granted the parties’ July 2020 Joint Motion for Partial Remand (JMPR), vacated the Board’s June 2019 decision, and remanded the matter to the Board to provide an adequate statement of reasons or bases. As an aside, the Board notes that the Veteran’s claim for service connection for right lower extremity radiculopathy was denied by the Board in a March 2020 decision. Therefore, the matter is no longer before the Board for appellate consideration and will not be addressed herein. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an extension of a temporary total evaluation for convalescence following surgery for a service-connected right foot disability beyond May 1, 2014 A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that 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 and 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. 38 C.F.R. § 4.30(a). Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge. 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months post-surgery, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). 38 C.F.R. § 4.30(b)(1). Extensions of one or more months, up to six months beyond the initial six months period post-surgery may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). The Court 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). The Court has also determined that the inability to return to any employment indicates a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296 (1995). In this matter, the Veteran underwent surgery on his right foot on March 21, 2014. See March 2014 VA postoperative surgery note. He is currently in receipt of a temporary total rating for post-surgical convalescence until April 30, 2014, one month from the first day of the month following the surgery. He asserts that an extension of the temporary total rating is warranted because his right foot required post-surgical convalescence until September 23, 2014, the initial six months period post-surgery. See December 2014 Notice of Disagreement; April 2015 Statement in Support of Claim; January 2019 Board hearing transcript. Turning to the evidence, in May 2014, the Veteran presented to a VA emergency department complaining of pain in his right foot which was not relieved by aspirin. A review of the musculoskeletal system was positive for decreased range of motion, strength, or change of gait, and physical examination revealed tenderness on the right ankle associated with mild swelling. The treatment provider noted that the Veteran’s VA podiatrist was contacted and suggested that the Veteran be discharged to be seen at the podiatry clinic. The Veteran was prescribed oxycodone and capsaicin ointment. In a June 2014 VA podiatry outpatient note, the Veteran reported that he was favoring his left side due to right foot pain and that he was unable to stand or walk for long periods. After evaluating the Veteran, the provider referred him for a physical therapy consultation. In a June 2014 VA physical therapy treatment plan note, the provider noted that following the Veteran’s right foot surgery in March 2014, he “has continued [to] have severe pain, swelling, ROM deficits in the ankle, foot and great toe which limit him in standing more than ten minutes and walking more than 5 minutes.” The provider determined that the Veteran “will benefit from desensitization exercises, modalities for pain/swelling, ROM and flexibility exercises, joint/scar mobilizations, and if able strength and balance/proprioceptive exercises.” The physical therapy prognosis was noted to be “fair,” and the treatment plan was for the Veteran to be seen 1 to 2 times per week for a total of 6 visits. In a July 31, 2014 VA physical therapy discharge note, the provider wrote, “on 03/21/14 pt underwent bone spur removal of lateral calcaneus, dorsal talus, metatarsal and removal of hardware in 1st metatarsal. At initial eval pt had severe pain, swelling, ROM deficits in the ankle, foot and great toe which limited him in standing more than ten minutes and walking more than 5 minutes. Following intervention, pt reports, less pain, sensitivity and being able to walk 1 mile and able to stand for longer periods of time. Pt demonstrates improve[d] swelling, ROM [range of motion] and strength of ankle, and reduced gait deviations. Pt has been very compliant with HEP [home exercise program] and all instructions, but his improvement has plateaued over the last 3 sessions. Pt is still limited in weight bearing activities and mobility due to foot pain. Pt will be discharged having met all goals.” In August 2014 VA podiatry outpatient notes, the Veteran confirmed that he had finished physical therapy for his right foot. However, in a VA outpatient podiatry note dated August 18, 2014, the treatment plan noted, “patient to continue PT [physical therapy], requested additional visits” and “RTC [return to clinic] once patient is done with PT.” No further physical therapy records related to the Veteran’s right foot are shown in the claims file. On September 4, 2014, the Veteran presented to a VA emergency department complaining of a swollen and tender right foot, and he requested “strong ibuprofen” because the meloxicam he was prescribed was “not working.” See September 2014 VA emergency department notes. In a VA podiatry outpatient note dated September 23, 2014, the Veteran complained of pain to his lateral right foot and right lateral incision site. The provider noted that the Veteran was “S/P 6 months RIGHT foot” surgery. The treatment plan included that the Veteran was “to continue with rigid inserts and compression stockings” and to return to the clinic as needed. In a December 2014 letter, Dr. K.M.W., the Veteran’s VA podiatrist and the attending surgeon for his March 2014 right foot surgery, stated that following surgery, the Veteran “was treated post operatively and underwent Physical Therapy. He was released on September 23, 2014. He should recieve (sic) 100% convalescence for the entire period, 3/31/14-9/23/14.” At the January 2019 Board videoconference hearing, the Veteran testified that his first surgery in September 2013 was not successful, so a second surgery was necessary, after which extra convalescence was required. In 2013, he had a reconstructive right foot surgery where they tried to “break [his] foot down and raise [his] arch up.” After the surgery, he continued to have problems with his foot, which only worsened. Therefore, in March 2014, his podiatrist recommended foot surgery again. She had to remove all the tools previously inserted to raise up the arch. The Veteran testified that after the March 2014 surgery, his right foot “didn’t heal right, the right way. It took a while. It took a long time. I had to continually go to podiatry, to physical therapy, to help with the healing process.” The Veteran indicated that he had to go see his podiatrist once a week after the surgery, and that she was “constantly evaluating” him. In terms of symptoms following the surgery, the Veteran reported he could not stand for long, walk on his heel, or walk for a long period of time due to the constant pain. The Veteran also testified that while he was working “[a]t some point” after the surgery, he ultimately had to resign from his job due to his right foot disability, as it required a lot of standing. In a January 2019 letter, Dr. K.M.W. explained that the Veteran required convalescence after his surgery in 2014 as he was non-ambulatory to his right lower extremity, required frequent leg elevation, was unable to lift, carry, squat, climb, stand, or drive during this recovery time, and was unable to work. On review of the evidence, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected right foot disability required post-surgical convalescence until September 23, 2014. Specifically, the evidence suggests that the Veteran needed additional time (beyond April 30, 2014) to return to a normal or healthy state following his March 2014 right foot surgery. See Felden, 11 Vet. App. at 430; 38 C.F.R. § 4.30(a)(1). Notably, in June 2014, after the Veteran reported he was favoring his left side due to right foot pain and was unable to stand or walk for long periods, a podiatry resident, supervised by Dr. K.M.W., referred the Veteran for a physical therapy consultation. See June 2014 VA outpatient note. The Veteran underwent multiple sessions of physical therapy in June and July 2014, which assisted in the Veteran’s return to a normal or healthy state, as the interventions resulted in less pain and sensitivity, being able to walk one mile and stand for longer periods of time, improved swelling, range of motion, and ankle strength, and reduced gait deviations. See July 2014 VA physical therapy discharge note. There is also evidence that the Veteran was unable to return to his employment during this period, which tends to indicate a need for continuing convalescence under 38 C.F.R. § 4.30. See Seals, 8 Vet. App. at 296; see also January 2019 Board hearing transcript; January 2019 letter from Dr. K.M.W. Moreover, the Board affords great probative value to Dr. K.M.W.’s opinion that the Veteran required post-surgical convalescence until September 23, 2014, as she is the Veteran’s treating physician, was the attending surgeon for the March 2014 operation, has appropriate expertise in podiatry, and considered the Veteran’s lay reports of his symptoms following surgery. See December 2014 and January 2019 letters from Dr. K.M.W. For these reasons, and after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that an extension of a temporary total evaluation for post-surgical convalescence until September 23, 2014, but not beyond, is warranted. See 38 C.F.R. § 4.30(a)(1). The Board emphasizes that under 38 C.F.R. § 4.30(b), it is only authorized at this time to consider an extension of up to three months beyond the permitted initial three months post-surgery, since extensions beyond the initial six months period post-surgery require approval of the Veterans Service Center Manager, and cannot be based on the criterion under 38 C.F.R. § 4.30(a)(1), as found here. However, the Veteran has not requested a temporary total rating beyond September 23, 2014, which falls within the initial six months period post-surgery. See December 2014 Notice of Disagreement; April 2015 Statement in Support of Claim; January 2019 Board hearing transcript. As such, the appeal is satisfied, and the Board need not address the issue of an extension beyond the initial six months period post-surgery. AB v. Brown, 6 Vet. App. 35, 39 (1993). Finally, neither the Veteran, nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar spine disability is remanded. The Veteran also asserts he is entitled to service connection for a thoracolumbar spine disability, to include as secondary to the gait deviations caused by his service-connected bilateral foot disabilities. By way of procedural background, the Veteran filed his original claim for service connection for a low back disorder in January 2002. In an April 2002 rating decision, the RO denied service connection, finding no current disability. The Veteran filed numerous petitions to reopen the claim, which were denied in October 2006, April 2008, April 2010, June 2010, and March 2014 rating decisions. In October 2006, the RO denied service connection, finding no in-service incurrence and no nexus to a service-connected disability. In a March 2014 rating decision, the RO denied reopening the claim due to the lack of new and material evidence. The Veteran did not timely appeal the March 2014 denial, nor was new and material evidence received within one year of notification of the rating decision. However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant, official service department records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). In August 2014, additional service treatment records (STRs) were associated with the Veteran’s claims file, which included a September 24, 2001 STR noting that the Veteran sought treatment for his “foot/back.” Although all prior rating decisions (noted above) indicated that STRs relevant to the Veteran’s period of service from April 1999 to April 2002 were among the evidence reviewed, it is unclear whether the September 24, 2001 STR was among these records. Furthermore, the September 24, 2001 STR is not found anywhere else in the Veteran’s claims file. As it is unclear whether the September 24, 2001 was associated with the claims file at the time of the prior decisions, and it provides relevant evidence of an in-service event, the Board must resolve all reasonable doubt in favor of the Veteran to find that the 3.156(c) exception to finality applies. Thus, the Veteran’s claim for service connection for a thoracolumbar spine disability will be adjudicated on a de novo basis rather than on the basis of whether new and relevant evidence has been received. The RO must consider the merits of this claim in the first instance; thus, remand is required prior to appellate review. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010); Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). While the RO must consider the merits of this claim in the first instance, since the Board is remanding the claim for additional development, the Board finds no prejudice to the Veteran could result from this decision. The record reflects that the Veteran was provided VA back examinations in January 2002, July 2006, and January 2017. While no etiology opinions were provided regarding the Veteran’s thoracolumbar spine disability following the January 2002 and January 2017 VA back examinations (the January 2002 VA examiner found “There is no pathology to render a diagnosis”), the July 2006 VA examiner wrote, “With regards to the question as to whether or not his service-connected foot condition is related to his degenerative changes to his lumbar spine, based on the review of the C-file as well as the CPRS, I cannot comment on this without resort to mere speculation.” As such, no adequate etiology opinion has been obtained regarding this claim. In a December 2014 VA rehabilitation note, the Veteran reported that he has experienced chronic low back pain since an injury in Iraq in 2005. The Board notes that in September 2006, VA made a formal finding of unavailability regarding the Veteran’s service medical records from October 2003 to March 2005. Thus, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, in a June 2014 VA physical therapy consultation note, the provider, a Doctor of Physical Therapy, noted that the Veteran “has c/o LBP [low back pain] likely related to gait deviations…” On remand, the VA examiner should address the foregoing evidence when providing opinions as to direct and secondary service connection. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s thoracolumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to: (a) To the extent possible, conduct a telephone or virtual interview with the Veteran to elicit the history of his thoracolumbar spine disability during and since active service. Then, render a report of the medical history elicited and associate the report with the claims file. (b) Identify all currently diagnosed thoracolumbar spine disabilities, to include arthritis. (c) For each currently diagnosed thoracolumbar spine disability, provide an opinion as to: i. Whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. * Specifically, address the following evidence: ** September 7, 2001 STR (Veteran noted a history of chronic back and bilateral foot pain lasting several months). ** September 24, 2001 STR (noting that the Veteran sought treatment for his “foot/back.”). ** November 2001 STR (Veteran complained of low back pain lasting two weeks, which he attributed to carrying rucksacks, equipment, and heavy lifting, and service medical provider assessed the Veteran with “Functional LBP,” recommended a physical profile, and prescribed Motrin). ** January 2002 VA examination report (Veteran reported that he hurt his back in the field carrying rucksacks, he went to the clinic and was given Motrin, and was given a profile for one week). ** December 2014 VA rehabilitation note (Veteran reported he has experienced chronic low back pain since an injury in Iraq in 2005). ii. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran’s service-connected bilateral foot disabilities, to include as due to gait deviations caused by his bilateral foot disabilities. * Specifically, address the provider’s finding in a June 2014 VA physical therapy note that the Veteran “has c/o LBP [low back pain] likely related to gait deviations…” (Continued on the next page) 2. Lastly, readjudicate all remanded claims. In so doing, ensure that all applicable theories of entitlement are addressed. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.