Citation Nr: 21007634 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-25 354A DATE: February 10, 2021 ORDER Entitlement to a temporary total disability evaluation under the provisions of 38 C.F.R. § 4.29, 4.30 based on the need for convalescence for laser surgery for leukoplakia is denied. REMANDED Entitlement to service connection for achalasia, to include as secondary to diabetes mellitus and/or stroke is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 23, 2009. FINDING OF FACT The evidence of record is against finding that the Veteran underwent treatment for his service-connected leukoplakia, requiring convalescence. CONCLUSION OF LAW The criteria for a temporary total disability rating for the service-connected leukoplakia disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.30 (2020). REASONS FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal was previously remanded in April 2018 and August 2020. The procedural history of this case is complex. In an April 2018 Board decision, several issues were decided. The following issues were remanded: service connection for a bilateral arm disorder; achalasia; leukoplakia, heart disease; and sleep apnea. Also remanded were entitlement t to a temporary total evaluation for leukoplakia; entitlement to special monthly compensation (SMC) at the housebound rate; and entitlement to an earlier effective date for TDIU. In an April 2020 rating decision, the RO granted service connection for leukoplakia as a complication of service-connected diabetes mellitus type II, effective January 4, 2012. Also, in that rating decision, the RO granted service connection for coronary artery disease, sleep apnea, right and left upper extremity disorders, and SMC at the housebound rate. An August 2020 Board decision was issued. The Board remanded the issues of service connection for leukoplakia and achalasia. The issue of service connection for leukoplakia was remanded in error; the issue should have been entitlement to a temporary total evaluation for leukoplakia. Each of the issues from the 2018 Board decision were granted except for the TDIU, which is addressed herein. 1. Entitlement to a temporary total disability evaluation under the provisions of 38 C.F.R. § 4.29, 4.30 based on the need for convalescence for laser surgery for leukoplakia is denied. The Veteran argues he is entitled to a temporary total disability rating due to a January 2012 laser surgical ablatement of the leukoplakia. See March 2012 statement in support of claim. 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. 38 C.F.R. § 4.30. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. The term convalescence indicates “a surgical procedure had been performed that would require at least one month for the Veteran to return to a healthy state.” Felden v. West, 11 Vet. App. 427, 430 (1998). Evidence that the Veteran would not return to a state of health sufficient for employment for a stated amount of time is to be taken into consideration when awarding convalescence benefits. Felden, 11 Vet. App. 427. The Veteran is service connected for leukoplakia. VA treatment record note the Veteran had an oral leukoplakia with mild dysplasia on biopsy in December 2011. A January 2012 VA treatment record documents the Veteran underwent an outpatient laser ablatement of the leukoplakia in the buccal mucosa of the left cheek and vestibule. One week later, the Veteran reported the swelling was impressive in size but was doing better, although the site is tender. He was prescribed Kenalog to apply to the site 4 times per day and continue with mouthwash before meals. He was prescribed medication for infection. Three days later, he was still using the medications; his diabetes was slowing the progress. The surgeon noted he was to continue to follow and support palliatively. In March 2012, the Veteran returned for next treatment of lesions in the mouth, noting he had healed well from the last laser treatment. On the whole, the Board finds that this does not meet the meaning of convalescence. It appears that the Veteran needed to take medication and was healing slowly, but that he was essentially healthy. While the evidence shows the Veteran continued to receive treatment for his leukoplakia and he developed an infection, there is no evidence that the procedure or treatment of the infection necessitated at least one month of convalescence or resulted in the types of severe postoperative residuals contemplated by 38 C.F.R. § 4.30(a)(2). Accordingly, the criteria for a temporary total convalescent rating are not satisfied. See 38 C.F.R. § 4.30. Reasons for Remand 2. Entitlement to service connection for achalasia, to include as secondary to diabetes mellitus and/or stroke is remanded. Regarding the issue of entitlement to service connection for achalasia for an adequate opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a VA examination in November 2019. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained during service, the condition was acute only and there is no evidence of chronicity of care. The examiner cited to medical evidence of record. The examiner also opined the claimed condition is less likely than not due to or a result of the Veteran’s service-connected condition. The examiner explained the Veteran’s is service connected to type II diabetes mellitus and stroke which are not medically related to achalasia. The claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. Further, the medical literature does not support a medical relationship. The examiner however, failed to address the April 2015 article submitted by the Veteran noting a relationship between achalasia and diabetes. Accordingly, remand is required. 3. Entitlement to TDIU prior to September 23, 2009 Remand is required for extraschedular consideration. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. The Veteran is in receipt of TDIU as of September 23, 2009. Prior to that date, the Veteran does not meet the criteria for schedular TDIU: his only service-connected disabilities for that time period are hypertension and diabetic nephropathy rated at 30 percent and diabetes mellitus, rated at 20 percent. Additionally, this issue is intertwined with the issue of service connection for achalasia which is remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the achalasia from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided, to include an explanation regarding any reliance on medical literature. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the achalasia had onset in, or is otherwise related to, active service. (b.) The examiner must provide an opinion regarding whether it is at least likely as not (50 percent or greater probability) that the achalasia is caused by the service-connected type II diabetes mellitus and/or stroke. (c.) The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the achalasia is aggravated by the service-connected type II diabetes mellitus and/or stroke. The examiner must address the following: 1) the prior examinations of record; 2) the April 2015 article submitted by the Veteran noting diabetes as a cause of achalasia; and 3) the Veteran’s lay statement and complaints concerning achalasia. 2. Refer the issue of entitlement to an extraschedular TDIU to the Director of Compensation Service. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.