Citation Nr: 21032641 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-09 032A DATE: May 27, 2021 ORDER Entitlement to an extension of temporary evaluation for convalescence following surgery for service-connected invertebral disc syndrome with degenerative arthritis of the spine ("lumbar spine disability") beyond January 31, 2018, is denied. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran's lumbar spine disability did not necessitate convalescence beyond January 31, 2018. CONCLUSION OF LAW The criteria for an extension of the temporary total disability evaluation for post-surgical convalescence for the lumbar spine disability beyond January 31, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.30 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 decision. The Veteran presented testimony before the Board in April 2021. Entitlement to an extension of temporary evaluation for convalescence following surgery for service-connected lumbar spine disability beyond January 31, 2018. After a thorough review of evidence, the Board finds that an extension of the temporary total disability evaluation for post-surgical convalescence beyond January 31, 2018, is not warranted. A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. 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 postoperative residuals such as incompletely healed surgical wounds, stumps and 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 (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge. 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months post-surgery, may be made under 38 C.F.R. § 4.30 (a)(1), (2), or (3). 38 C.F.R. § 4.30 (b)(1). Extensions of one or more months, up to six months beyond the initial six months period post-surgery may be made only under 38 C.F.R. § 4.30 (a)(2) or (3) upon the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b)(2). The Court has defined convalescence 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). The Court has also determined that the inability to return to any employment indicates a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296 (1995). In this case, on September 29, 2017, the Veteran underwent a lumbar decompression surgery from L1-L4. He is currently in receipt of temporary total rating or post-surgical convalescence until January 31, 2018, four months from the first day of the month following the surgery, under 38 C.F.R. § 4.30. The Veteran has not set forth any contentions as to why an extension of the temporary total rating is warranted. Notably, he has not provided any details regarding a convalescence or severe post-operative residuals following his lumbar spine surgery. In fact, he testified before the Board in April 2021 and indicated that he was not seeking an extension of the temporary total rating but wanted a permanent 100 percent rating for his back. BVA transcript pp 14-16. However, the matter of increased rating is not before the Board. The Board notes that the purpose of a temporary total evaluation pursuant to 38 C.F.R. § 4.30 is to aid a veteran 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. Simply stated, a claim for temporary total evaluation pursuant to 38 C.F.R. § 4.30 is not an increased rating claim. Moreover, the Board notes the Veteran filed a claim for increased rating for his lumbar spine disability in March 2019. In June 2019, the RO awarded an increased 40 percent rating effective March 13, 2019, which was not appealed. The Veteran testified that he was hospitalized for approximately one month following surgery for his lumbar spine disability and went through rehabilitation for approximately two months. This testimony is supported by the evidence of record. Notably, he was discharged from the hospital on September 30, 2017. He was admitted for intensive comprehensive rehabilitation program and was discharged on October 23, 2017. The Veteran was medically stable throughout his stay. He was functionally independent upon discharge, to include eating and grooming skills. Bathing was reported to be standby assistance. Lower body dressing and toileting skills were modified independence upon discharge. The Veteran was able to ambulate with modified independence on discharge. The discharge note indicated the Veteran worked with physical therapy and occupational therapy beginning on the second day of admission and his strength improved. His condition at the time of discharge was listed as improved. In consideration of the foregoing, the Board finds that the record does not support the need for convalescence beyond January 31, 2018. Significantly, from January 31, 2018, the record is devoid of evidence of lumbar spine surgery resulting in ongoing severe postoperative residuals or other need for convalescence to warrant an extension of the temporary total rating beyond January 31, 2018. The Board emphasizes that under 38 C.F.R. § 4.30 (b), it is only authorized at this time to consider an extension of up to three months beyond the permitted initial three months post-surgery, since extensions beyond the initial six months period post-surgery require approval of the Veterans Service Center Manager, and cannot be based on the criterion under 38 C.F.R. § 4.30 (a)(1). However, as indicated above, the Veteran has not requested a temporary total rating beyond January 31, 2018, which falls within the initial six months period post-surgery. Accordingly, the Board finds that the conditions specified for extension of the temporary total rating beyond January 31, 2018, are not met, and the claim must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hip disability, to include as secondary to service-connected disabilities, is remanded. During the Veteran's April 2021 Board hearing, he identified relevant outstanding private treatment records. Notably, he testified that he sought private treatment for his bilateral hip disbility, to include from Dr. B in Mississippi who performed his bilateral total hip arthroplasties. BVA Transcript p 7. The Board notes there are sporadic private treatment records pertaining to the hips dated in 2015 and 2016. A remand is required to allow VA to obtain authorization and request any missing records. The Veteran also testified that he initially sought treatment for his hips after leaving the military at the Indiana VA Medical Center (VAMC). He then indicated that he moved to Mississippi and saw doctors at the Tuscaloosa VAMC. The Veteran was discharged from service in 1973 and the earliest VA treatment records associated with the claims file are dated in 2015. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Finally, the Veteran maintains that his bilateral hip disability is the result of heavy lifting while performing duties in supply, setting up laundry and bathroom facilities, and lifting generators. The Veteran's service personnel records confirm his duties as a laundry and bath supply/repair specialist. He alternatively contends that his bilateral hip disability is secondary to his service-connected lumbar spine disabilty. The Board cannot make a fully-informed decision on the issue of service connection because the July 2017 VA examiner failed to address direct causation and did not provide an opinion as to whether the Veteran's lumbar spine disability aggravated his bilateral hip disability. Consequently, an addendum opinion must be sought. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private providers who have treated him for bilateral hip disability, to include Dr. B in Mississippi who performed his bilateral total hip arthroplasties. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. Document all requests for records. 2. Obtain the Veteran's VA treatment records for the period from 1973 to 2015, to include from the Indiana and Tuscaloosa VAMCs. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hip disability is at least as likely as not related to his active military service or in the alternative, proximately due to or aggravated beyond its natural progression by the service-connected lumbar spine disability. In answering the question on direct causation, the examiner must address the Veteran's contentions that his bilateral hip disability is the result of heavy lifting while performing duties in supply, setting up laundry and bathroom facilities, and lifting generators. The examiner is informed that the Veteran's service personnel records confirm his duties as a laundry and bath supply/repair specialist. The complete rationale for all opinions expressed must be provided. 4. 4.ction the issues 4. If upon completion of the above the issues remain denied, the matter must be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.