Citation Nr: 21007602 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-35 616 DATE: February 10, 2021 ORDER Entitlement to a temporary total rating for convalescence under 38 C.F.R. §§ 4.29, 4.30 is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral shoulder pain is remanded. FINDING OF FACT The Veteran became service-connected for degenerative arthritis of the spine and intervertebral disc syndrome (claimed as back pain) subsequent to his hospitalization, and he returned to work after approximately two weeks. CONCLUSION OF LAW The criteria for entitlement to a temporary total rating for convalescence under 38 C.F.R. § 4.30 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1980 to October 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the November 2014 and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Temporary Total Ratings Under 38 C.F.R. § 4.29, a total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Under 38 C.F.R. § 4.30, 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 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. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. Specifically, a temporary total rating will be assigned when treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence (effective as to outpatient surgery March 1, 1989); (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; or (3) immobilization by cast, without surgery, of one major joint or more. Id. § 4.30(a)(1)-(3). The Veteran contends that he is entitled to a temporary total disability rating for convalescence for his lumbar back injury. The August 2020 rating decision awarded the Veteran service connection for degenerative arthritis of the spine and intervertebral disc syndrome (claimed as back pain) effective August 22, 2014. The evidence of the record establishes that on April 17, 2014 the Veteran had a discectomy. The June 6, 2014 follow up note indicates that the Veteran made an excellent recovery. “The first two weeks were very difficult, but at that point, [the Veteran] had been back to work.” The Veteran became service-connected subsequent to his hospitalization, and he was back to work within two weeks. Accordingly, he does not meet the criteria under 38 C.F.R. §§ 4.29, 4.30, and the claim for a temporary total rating for hospitalization must be denied. In conclusion, the preponderance of the most probative evidence weighs against entitlement to a temporary total rating under 38 C.F.R. § 4.29 and/or 4.30 based on the Veteran becoming service-connected subsequent to the hospitalization, and the Veteran reporting he was able to return to work after two weeks. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is the result of his military service. The Veteran testified at the January 2020 Board hearing that his blood pressure increases when he is in pain due to his low back, shoulder, and neck disabilities. In July 2020, the Veteran underwent a VA examination for his hypertension condition. The examiner opined that the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected conditions. As to the rationale, the examiner stated that “chronic pain has been noted to aggravate hypertension. Although, the mechanism is complex it can be distilled down to chronic pain relentlessly stimulates nerves responsible for regulating blood pressure.” This opinion is inadequate because it combines the aggravation and causation opinion, and thus requires clarification. In August 2020, the AOJ deferred the rating because the July 2020 VA opinion was inadequate. The AOJ requested that the examiner address whether the hypertension is at least as likely as not (50 percent or greater probability) incurred in or caused by the high blood pressure readings during service. In the September 2020 addendum opinion, the examiner opined that it is less likely than not that the Veteran’s hypertension is proximately due to or the result of claimed BP readings during active duty service. As to the rationale, the examiner indicated that the private medical records confirm hypertension as far back as 2007-2008, but there are no documented issues in service at all with regard to high blood pressure. The examiner also indicated that the Veteran was not diagnosed with high blood pressure until approximately 23 years after service. The September 2020 VA examiner opined that it is also less likely as not that the Veteran’s hypertension was aggravated beyond its natural progression by lower back/neck/bilateral shoulder chronic pain issues. As to the rationale, the examiner stated that, Whereas it is true that chronic pain with acute exacerbations can elevate the blood pressure, this would only occur transiently during flare-ups. The fact remains that overall, the Veteran’s hypertension has been poorly managed clinically, with multiple borderline and elevated readings since 2008, and he has remained on the same medications essentially (Amlodipine and Benazepril or Lisinopril). There are actually newer and more effective medications for hypertension. The September 2020 addendum opinions are inadequate because while the examiner clarifies that hypertension can be aggravated by pain, the Veteran’s hypertension has been managed poorly. However, the examiner does not opine whether the Veteran’s hypertension was caused by his service-connected disabilities. The AOJ’s request for clarification did not adequately reconcile the causation element. The Board cannot make a fully informed decision on the issue of entitlement to service connection for hypertension without obtaining an addendum addressing causation. Thus, a remand is necessary to obtain an addendum opinion to determine if there is a basis to grant service connection for the Veteran’s hypertension disability. 2. Entitlement to service connection for bilateral shoulder pain is remanded. The record shows that the Veteran has a current bilateral shoulder disability. At the January 2020 Board hearing, the Veteran testified that he had neck and shoulder pain in service after walking long distances over steep and uneven terrain while carrying a large 75-pound pack that weighed down on his head and neck. He also testified that he has had neck and shoulder pain since service. In July 2020, the Veteran underwent a VA examination for his bilateral shoulder disability. The examiner opined, that the Veteran’s bilateral shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that, the Veteran’s service treatment records reflect that the Veteran’s duties as an infantry soldier, included walking long distances over steep and uneven terrain while carrying a large 75- pound pack that weighed down on his head and neck. In March 2009, the Veteran had an x-ray that revealed, “1. Mild arthrosis in the left [acromioclavicular] joint with minimal inferior osteophyte formation. 2. No other significant abnormalities in either shoulder. 3. No acute traumatic changes.” The examiner stated that there is no mention of a shoulder injury during the Veteran’s active service. This medical opinion is inadequate because it does not consider the Veteran’s lay testimony that he has had pain since service. The Veteran also contends that his back and shoulder injuries are interrelated. The Board cannot make a fully informed decision on the issues of entitlement to service connection for a bilateral shoulder disability without obtaining an addendum opinion addressing the lay testimony, and obtaining a secondary service connection opinion to determine if the Veteran’s service connected disabilities are related to or aggravated his bilateral shoulder disability. The matter is REMANDED for the following action: 1. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the September 2020 medical opinion (for hypertension) hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should provide the following medical opinions and should give a detailed explanation(s) for the reasons for the opinion(s) provided. (a.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension is proximately due to or the result of pain due to his service-connected back, neck, and/or radiculopathy disabilities? (b.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension increased in severity by his service-connected back, neck, and/or radiculopathy disabilities? (Does not need to permanently worsen). (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed hypertension is related to any in-service injury, event, or disease? The examiner should give a detailed explanation for the reasons for the opinion(s) provided. 2. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the July 2020 medical opinion (for bilateral shoulders) hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should provide the following medical opinions and should give a detailed explanation(s) for the reasons for the opinion(s) provided. (a.) Does the Veteran’s shoulder pain, on its own, result in functional loss or functional impairment? If so, describe the functional loss or impairment. (b.) Is it at least as likely as not (50 percent or greater probability) that any of the Veteran’s diagnosed shoulder conditions, are etiologically related to, or to any in-service injury, event, or disease? (c.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s bilateral shoulder condition is proximately due to or the result of pain due to his service-connected back, neck, and/or radiculopathy disabilities? (d.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s bilateral shoulder condition increased in severity by his service-connected back, neck, and/or radiculopathy disabilities? (Does not need to permanently worsen). 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Although the Board has not yet made a credibility finding, the examiner must note and address that the Veteran stated that: (a.) He was treated for his shoulders, back and neck during service on multiple occasions, has not injured them after separating from service, but they have been an ongoing problem since service, and he continues to have the same symptoms. (b.) He cannot reach down and pick up his grandchildren because of his neck and shoulder. (c.) His shoulder and neck conditions are related. (d.) He was an infantry soldier and carried seventy-five-pound packs, plus weapons, while navigating steep terrain and had pressure on his neck and shoulders that pounded. (e.) And when you’re walking up steep terrain like that, especially in Korea. They stopped us one night. I’ll never forget it. And, we were on the side of a mountain and they said, this is where you bivouac. And, you literally had to stand with one leg up and one leg down in order to keep your balance. And, in order to --you couldn’t put up a two-man hooch, so you had to do a half. And then, you had to dig an indentation in the side of the hill to keep from actually rolling off. That morning we woke up to snow and that same day we walked over ten miles nonstop. And this was --that really, really did it. The cold weather and the problems that I was having with my back at the time, that really almost broke me. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.