Citation Nr: 21009175 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-56 797 DATE: February 19, 2021 ORDER Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on a June 26, 2013 surgery for a service-connected low back disability is granted. FINDING OF FACT On June 26, 2013, the Veteran underwent surgery on his service-connected low back disability, which required at least one month of convalescence thereafter. CONCLUSION OF LAW The criteria for a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on a June 26, 2013 surgery for a service-connected low back disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in August 2019 and November 2020. In accordance with both remands, the RO requested that the Veteran submit or authorize for release additional private treatment records in November 2019, December 2019, and November 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. A transcript of the hearing is of record. The Board notes that the Veteran also has a separate appeal pending concerning the issue of entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis. However, as that issue was the subject of a hearing before an Acting VLJ, that issue may not be addressed herein. Instead, that issue will be the subject of a separate Board decision issued at a later date. Veterans Claims Assistance Act of 2000 (VCAA) The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Here, the RO requested that the Veteran either submit or authorize for release all private treatment records relevant to his claim for a temporary total rating in in November 2019, December 2019, and November 2020. To date, the Veteran has not submitted the fully completed forms necessary to allow VA to obtain the records on his behalf, nor has he submitted them himself. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that VA has made reasonable efforts to obtain any further outstanding private treatment records, and therefore the duty to assist with respect to obtaining private treatment records is satisfied. 38 C.F.R. § 3.159(c)(1). Further, VA requested the Veteran’s Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2). In January 2020 correspondence the SSA stated that they had no medical records for the Veteran, and therefore that further attempts to obtain the records would be futile. Id. In December 2020 correspondence, VA informed the Veteran of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so to the Veteran. 38 C.F.R. § 3.159(c)(2), (e). Neither the Veteran, the representative nor the record has raised any other 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). As such, the Board will proceed to adjudicate the issue on appeal. Temporary Total Ratings A total disability rating (100 percent) also 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 to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a one major joint or more, application of a body cast, 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)(1)–(3). Convalescence is defined 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)). 1. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30. In this case, the Veteran asserts that he is entitled to a temporary total rating due to a surgery for his service-connected low back disability which required at least one month of convalescence. The Veteran is currently service connected for lumbar spine degenerative disc disease, status post fusion. A June 2013 private treatment record reflects that the Veteran appeared for a presurgical conference. It was noted that the Veteran previously had a posterior fusion surgery, which had resulted in the development of pseudoarthrosis. The record further states that the Veteran was being scheduled for a new surgery to remove the metal placed by the prior fusion, and to then conduct an anterior lumbar fusion at L5-S1. A subsequent June 26, 2013 operative note reflects that the Veteran underwent lumbar spine surgery to remove metal and have an anterior lumbar interbody fusion with subtotal anterior diskectomy at L5-S1. A discharge note dated that same day noted that the Veteran’s condition was improved and stable following surgery. A July 2013 post-surgery follow-up record noted that the Veteran’s incisions were healing well, with one episode of aching. The Veteran was advised to continue spine precautions and to continue his walking program. A later August 29, 2013, private treatment record noted the Veteran appeared to a follow-up appointment two months post-surgery. The record stated that the Veteran was doing very well, and was much improved from his preoperative status. The record noted that the Veteran was only taking Tylenol for pain, and was getting up from a chair well and walking without any pain. The record noted that the Veteran was continuing to observe precautions, and that another follow-up would be scheduled in two months. Based on the foregoing, the Board finds that on June 26, 2013 the Veteran underwent surgery on his service-connected low back disability. While the June 26, 2013, record noted a diagnosis of pseudoarthrosis, as discussed the pre-surgical consultation record clearly explained that this was the result of the Veteran’s prior lumbar fusion, which was performed to remedy his degenerative disc disease, and which is considered part of his service connected low back disability. Thus, the June 26, 2013 surgery was one that was for a service-connected disability. Further, the private treatment records reflect that in July 2013, one month after the surgery, the Veteran was still reporting symptoms and working on walking without pain. Felden, 11 Vet. App. at 430. It was not until the August 29, 2013 record that the Veteran was noted to be capable of walking without pain and to be able to get up from a chair. As such the evidence shows that the Veteran required at least one month to return to a normal or healthy state following the surgery. Id. Therefore, the Board finds that a temporary total rating based on the need for at least one month of convalescence following the June 26, 2013 surgery for his service-connected low back disability is warranted. 38 C.F.R. § 4.30. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.