Citation Nr: 21028073 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-34 325 DATE: May 10, 2021 ORDER Entitlement to a temporary total disability rating based on convalescence for lumbar spine surgery on April 11, 2012 is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran underwent surgery for his service-connected lumbar spine disability on April 11, 2012. CONCLUSION OF LAW The criteria for a temporary total disability rating based on the need for convalescence following the Veteran's lumbar spine surgery have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § §§ 3.102, 4.30 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to April 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claim for a temporary total rating was denied by the RO in the September 2012 rating decision. The Veteran requested reconsideration in October 2012, and the claim was denied again in the August 2013 rating decision. However, the Veteran submitted new and material evidence in November 2013, within one year of the August 2013 rating decision. The Veteran's claim was then denied in a September 2014 rating decision, and the Veteran subsequently perfected his appeal. Therefore, while the RO has characterized the Veteran's claim as a claim to reopen a previously denied claim; the Board finds that the Veteran has continuously prosecuted his claim since the initial claim for a temporary total rating was denied in September 2012. In his July 2016 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested to appear at a hearing before the Board. The Veteran failed to appear for the hearing before the Board scheduled in January 2020. He has not provided good cause reasons for his failure to appear; therefore, his hearing request is considered to be withdrawn. Temporary total rating 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 post-operative residuals, or (3) the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § § 4.30. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability results in 1 of the 3 scenarios just noted. 38 C.F.R. § § 4.30(a). Convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994)). Recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986)). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § § 4.30. In a March 2012 medical certification, the Veteran's surgeon indicated that he was to undergo surgery and would be incapacitated for approximately 8 weeks. The record reflects that the Veteran underwent an anterior lumbar interbody fusion at L5-S1 on April 11, 2012. The Veteran was discharged the next day, and the post-operative plan shows that the Veteran was not to engage in any strenuous activity, no driving until approved by his physician and no bending, lifting, or twisting. He also had to follow directions from his physical therapist. The Veteran could do some moderate walking but could not return to work until approved by his physician. He was allowed to bathe by sponge only. The instructions also indicated he was being provided several medications, including pain medications. A postoperative treatment record from April 2012 notes that the Veteran indicated that his symptoms had improved, and that residual symptoms included back pain and left leg pain, and side effects of Percocet. An examination showed moderately reduced lumbar spine range of motion but was able to stand without difficulty. In May 2012, it was noted that the Veteran was overall better than he was pre-operation, and that he could ride in a car longer without pain and was able to walk well. However, the Veteran was also suffering from bilateral hip pain with intermittent left leg symptoms. He was having difficulty lying on his left side. His left testicle was less swollen but still sore. It was noted that his leg symptoms should improve in time and he should go for an outpatient physical therapy consult. In July 2012, the Veteran was back to work full time and was doing well. He indicated his low back pain was over 50 percent better and he could ride in a car and sit longer. The record also contains a prescription from the Veteran's surgeon from May 2012, which indicated that the Veteran "may return to work" as of June 11, 2012. Private treatment records from June 2012 note treatment for testicular pain which had started since having back surgery 8 weeks ago. In his July 2016 VA Form 9, the Veteran indicated that he was not released by his neurosurgeon to return to work until June 11, 2012. The Veteran was out of work recovering from surgery during that time. In light of the above evidence and the Veteran's limitations after surgery, the Board finds that the Veteran required convalescence after his anterior lumbar interbody fusion at L5-S1 on April 11, 2012. The medical evidence supports that the Veteran was under a doctor's care, was unable to engage in any strenuous activity, and could not do any bending, lifting, or twisting, and could not drive and for a period. He also suffered from residual effects, including left hip problems and left testicle problems, for which he sought treatment. The evidence also shows that the Veteran also was specifically not able to return to work until June 11, 2012. While the follow up treatment reports indicate that the Veteran was healing well, the Board finds it significant that the Veteran was not recommended to return to work until June 11, 2012. Accordingly, resolving reasonable doubt in the Veteran's favor, a temporary total evaluation based on the need for convalescence for two months beginning on April 11, 2012 is granted. 38 C.F.R. § 4.30. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.