Citation Nr: 21028188 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-19 122 DATE: May 10, 2021 ORDER Entitlement to a temporary total disability rating, beyond February 1, 2014, for convalescence due to neck surgery is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for right arm radiculopathy is remanded. Entitlement to service connection for bilateral lower extremity sciatica, also claimed as nerve damage, is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran did not require convalescence beyond February 1, 2014 following his December 9, 2013 neck surgery. 2. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an extension of a temporary total disability rating due to treatment requiring convalescence for a service-connected disability are not met. 38 U.S.C. § 5107; 38 C.F.R. § 4.30. 2. The criteria for entitlement to a TDIU are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to August 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2014, October 2014 and February 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. Temporary Total Disability Rating The Veteran was assigned a temporary total disability rating for convalescence following his neck surgery from December 9, 2013, the date of surgery, to February 1, 2014. Thereafter he was assigned a disability rating of 20 percent. The Veteran contends that he is entitled to an extension of the temporary total disability rating for his neck surgery. A temporary total disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Rating Schedule, when it is established that the treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for home confinement, or the necessity for continuous 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). An extension of one, two, or three months of a temporary total evaluation may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b). Extensions of one to six months beyond the initial six-month temporary total evaluation may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). "Convalescence" is defined as "the stage of recovery following an attack of disease, or a surgical operation, or an injury." See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining "recover" as "the act of regaining or returning toward a normal or healthy state"). 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. Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability, and not rated under 38 C.F.R. § 4.30. A review of the Veteran's treatment records reflect that the Veteran underwent neck surgery on December 9, 2013. The Veteran was discharged on December 11, 2013 with instructions to wear a hard collar, avoid heavy lifting or driving, with activity as tolerated. The Veteran was seen six weeks following the surgery and described as "doing very well." The treating neurologist noted that the Veteran's incision had healed and that he was undergoing rehabilitation. The Veteran was next seen in March 2014, when it was noted that he had completed physical therapy, was "doing well" and was able to do exercises at home. The Veteran testified at the February 2021 Board hearing that he was up and walking within a couple of hours of the December 2013 surgery and was able to complete 6 weeks of physical therapy. He described his recovery from the surgery as "quick," and stated that he felt better than before the surgery, but he did not feel as though he was able to use his hand the way that he should have been. The Board finds that a further extension of the Veteran's temporary total evaluation beyond February 1, 2014 was not warranted. The competent medical evidence reflects that the December 9, 2013 surgery did not result in incompletely healed surgical wounds, therapeutic immobilization, house confinement or immobilization. Although the Veteran's lay testimony and the medical evidence reflect ongoing pain and neurological symptoms following the surgery, a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic following surgery. Accordingly, entitlement to an extension of a temporary total disability evaluation for convalescence following surgery beyond February 1, 2104 is denied. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran is rated at 30 percent for achalasia, 30 percent for a left arm condition, 20 percent or syringomyelia with residual status post cervical laminectomy (neck disability), 20 percent for right arm radiculopathy and 10 percent for tinnitus. For the purposes of determining if the Veteran meets the schedular requirements for TDIU, the Veteran's neck and upper extremity disabilities will be considered one disability rated as 50 percent, based on their common etiology. 38 C.F.R. § 4.16(a). The Veteran's combined disability rating is 70 percent from February 28, 2014. Accordingly, the Veteran qualifies for a schedular TDIU. The record reflects that the Veteran is a high school graduate and worked in maintenance following his discharge from service. The Veteran was employed by a grocery store chain and reported that he retired in 2009 when his employer declared bankruptcy and went out of business. The Veteran reported to a May 2014 VA examiner that he felt he could no longer handle the workload because of his right arm weakness and joint pain. The May 2014 VA examiner concluded that the Veteran's peripheral neuropathy did not impact his ability to work. A November 2015 VA examination for the Veteran's esophageal condition noted that it had an impact on his ability to work. A December 2015 VA examination for the Veteran's esophageal condition concluded that the condition had no impact on his ability to work, noting that while there was mild functional limitation, the Veteran was capable of sedentary physical activity. A December 2015 VA examination for the Veteran's neck disability noted that the Veteran's syringomyelia with residual status post cervical laminectomy with residual left and right upper extremity radiculopathy resulted in moderate functional limitation. The examiner described the Veteran's right arm as "almost useless" with swelling and decreased sensation, weakness and difficulty to hold on to things. The examiner also concluded that the Veteran was capable of sedentary physical activity. The Veteran was determined to be disabled for Social Security Administration (SSA) purposes in January 2011, based on his neck disability. The Veteran testified at the February 2021 Board hearing that his duties in maintenance required using power tools and working at different angles, including overhead. The Veteran testified that he cannot hold his right hand over his head and is unable to hold onto power tools due to pain in his arm. VA treatment records confirm the Veteran's physical limitations. A March 2015 VA treatment note described the Veteran's limited ability to drive based on his lack of rotation of the neck. The note also described the Veteran's inability to raise his arms to shoulder height or greater. A January 2018 letter from the Veteran's treating gastroenterologist noted that the Veteran's esophageal condition developed into mega esophagus, a rare, end-stage consequence that resulted in the Veteran being completely dependent on gravity to pass food. The treating gastroenterologist noted that the condition had a profoundly negative impact on the Veteran's quality of life, was irreversible and would worsen. The Veteran also submitted a statement from his treating chiropractor noting that the Veteran's cervical range of motion was greatly reduced, and that he had weakness and tingling in his arms. The Board finds that the probative evidence weighs in favor of the Veteran's entitlement to a TDIU. The record evidence supports a finding that the Veteran is unable to perform the duties required for maintenance work based on his neck pain and his limited use of his right arm. The evidence also suggests that the Veteran's neck and arm pain and esophageal disability would prevent him from being able to perform other types of work. The Board acknowledges the opinions from VA examiners that the Veteran's disabilities did not impact his ability to work. These opinions are not, however, supported by the record evidence documenting the Veteran's physical limitations. The opinions that the Veteran is capable of sedentary employment are also belied by the record evidence demonstrating the impact of the Veteran's neck, upper extremity and esophageal disabilities. Based on the foregoing, the Board finds that the competent medical and lay evidence weighs in favor of a finding that the Veteran's service-connected disabilities precluded him form performing any type of gainful employment. Accordingly, the claim for a TDIU is granted. REASONS FOR REMAND Entitlement to a disability rating in excess of 20 percent for right arm radiculopathy is remanded. The Veteran testified at the February 2021 Board hearing that his right arm pain has gotten worse since his most recent VA examination in 2015. Accordingly, remand is required to assess the current nature and severity of the Veteran's right arm radiculopathy. Entitlement to service connection for bilateral lower extremity sciatica, also claimed as nerve damage, is remanded. The Veteran contends that his bilateral lower extremity radiculopathy is related to his neck disability. Although the Veteran was afforded a VA examination for his bilateral radiculopathy in February 2018, the examiner did not address whether the Veteran's radiculopathy was secondary to his neck disability. Accordingly, the Board finds the VA examination inadequate, and remands for consideration of the Veteran's claim for secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, it must ensure that the examination is adequate). Entitlement to service connection for erectile dysfunction is remanded. The competent medical evidence of record reflects that the Veteran has been diagnosed with erectile dysfunction. The Veteran contends that his erectile dysfunction is related to his cervical spine disability and bilateral lower extremity radiculopathy. The Veteran's claim for service connection for erectile dysfunction is thus inextricably intertwined with his claim for service connection for lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating that issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the claim must also be remanded. The matters are REMANDED for the following action: 1. Obtain pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. After completing the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to evaluate the Veteran's right arm radiculopathy. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. The examiner should provide a full description of the radiculopathy and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must also provide a rationale for any opinions, citing to specific evidence in the record. 3. After the development in item 1 has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to address the nature and etiology of the Veteran's bilateral lower extremity radiculopathy. The entire claims file and this remand should be made available to and be reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran's bilateral lower extremity radiculopathy was caused by his service-connected neck disability? (b.) If not caused by the neck disability, is it at least as likely as not that the Veteran's lower extremity radiculopathy has been worsened beyond normal progression by his service-connected neck disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran's neck disability caused any incremental increase, even transient, in his bilateral lower extremity radiculopathy, regardless of permanence. (c.) If the examiner finds that the Veteran's bilateral lower extremity radiculopathy has been worsened beyond normal progression (aggravated) by his service-connected neck disability, please attempt to quantify the degree of aggravation beyond the baseline level the bilateral lower extremity radiculopathy that is attributable to the neck disability. (d.) Whether it is at least as likely as not that the Veteran's erectile dysfunction was caused by his service-connected neck disability. (e.) If not caused by the neck disability, is it at least as likely as not that the Veteran's erectile dysfunction has been worsened beyond normal progression by his service-connected neck disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran's neck disability caused any incremental increase, even transient, in his erectile dysfunction, regardless of permanence. (f.) If the examiner finds that the Veteran's erectile dysfunction has been worsened beyond normal progression (aggravated) by his service-connected neck disability, please attempt to quantify the degree of aggravation beyond the baseline level of the erectile dysfunction that is attributable to the neck disability. A complete rationale for the examiners' opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.