Citation Nr: 21042169 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-46 752 ORDER Entitlement to a rating in excess of 40 percent for a back disability is denied. Entitlement to a temporary total evaluation for convalescence prior to January 25, 2016 and after August 1, 2016 is denied. Entitlement to special monthly compensation (SMC) prior to January 25, 2016 and after August 1, 2016 is denied. FINDINGS OF FACT 1. The Veteran's back disability is not manifested by IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months or unfavorable ankylosis. 2. The evidence does not show that prior to January 25, 2016 and after August 1, 2016 the Veteran required at least one month of convalescence for his service-connected back disability, experienced severe post-operative residuals, or involved immobilization by cast, without surgery, of one major joint or more for a service-connected disability. 3. The Veteran was not housebound and did not require aid and attendance based on service-connected disabilities prior to January 25, 2016 or after August 1, 2016. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for a back disability are not met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.97, Diagnostic Codes (DCs) 5289, 5243, 5237. 2. The criteria for entitlement to a temporary total disability rating based upon convalescence for surgical treatment for a back disability prior to January 25, 2016 and after August 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30. 3. The criteria for SMC for the periods above have not been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1980 to June 2000. These matters are on appeal from June 2016 and September 2016 rating decisions by a Department of Veterans Affairs Regional Office. These matters were previously before the Board in December 2018 and most recently in May 2020. They were remanded for further development, which has now been completed and the matters are again before the Board. The Board notes the Veteran is currently rated as 100 percent disabled and has been in receipt of a total disability rating based on individual unemployability (TDIU) from June 30, 2016. The Board must address the residual issues. This decision does not impact the TDIU finding. Increased Rating Claim The Veteran's back disability is currently rated as 40 percent disabling under DC 5289. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Prior to September 26, 2003, the relevant diagnostic codes pertaining to the lumbar spine included those for evaluation of residuals of vertebral fracture (DC 5285), ankylosis (DC 5289), limitation of motion (5292), intervertebral disc syndrome (DC 5293), and lumbosacral strain (DC 5295). As a vertebral fracture and IVDS have not been shown, DCs 5285 and 5293 will not be considered. Under the pre-amended regulations, in order to warrant a higher rating, the medical evidence must show the following: favorable ankylosis of the lumbar spine (40 percent under DC 5289);severe limitation of motion of the lumbar spine (40 percent DC 5292); severe lumbosacral strain with listing of whole spine, positive Goldthwaite's sign, marked limitation of forward bending when standing, loss of lateral motion with arthritic changes, narrowing or irregularity of joint space (40 percent under DC 5295) (under the pre-amended regulations) or forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine (both 40 percent under the amended regulations). Since September 26, 2003, the diagnostic codes pertaining to the back have changed. Under DC 5237, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under DC 5243, a 40 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. As of February 7, 2021, new musculoskeletal ratings went into effect. Under the new regulations, DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. There was no change to DC 5243. The Board has considered the Veteran's claim in light of all of the potentially relevant regulations and has found the Veteran's back disability does not warrant a higher evaluation. A July 2017 statement from co-worker said he noticed the Veteran's back caused him a lot of pain at work and he struggled to perform tasks. An August 2017 statement from the Veteran's spouse stated that the Veteran was still struggling with back pain and sometimes, his back was so stiff, she had to help him out of bed and that he couldn't pick things off the floor. The Veteran took showers on his own but used safety bars and she washed his back because he couldn't reach it. The Veteran also still struggled with sitting for long periods of time, lifting anything heavier than five pounds, and was in constant pain. The Veteran's spouse also said she took care of all the cleaning and cooking in the house and the errands. The Board notes Social Security Administration (SSA) records show the Veteran was found to be disabled due to his back disability. The Veteran had an examination for his back in May 2016 in which the examiner reviewed the Veteran's file and saw him in person. The examiner noted the Veteran's current symptoms of pain, weakness, poor endurance, and stiffness. The Veteran reported taking medication and having flare ups with too much standing, sitting, walking, lifting, carrying, pushing, or pulling. The Veteran was unable to perform range of motion testing due to his recent spinal fusion. The examiner noted the Veteran had localized tenderness and guarding resulting in abnormal gait or spinal contour but did not have ankylosis in his back and did not have IVDS. The Veteran had another examination for his back in August 2020 in which the examiner saw the Veteran in person and reviewed his file. The Veteran reported his current symptoms included near constant lower back pain and that he used medication to treat his back and that he had flare ups every other day which were severe and lasted two to four hours. The Veteran's back led to functional loss which limited prolonged sitting, standing, walking, bending, and lifting. The Veteran's forward flexion was to 55 degrees with tenderness to palpation but no additional loss of range of motion after repetitive use testing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare ups. The Veteran had guarding not resulting in abnormal gait or abnormal spinal contour and no limitations due to ankylosis. The examiner noted the Veteran did not have ankylosis and did not note the Veteran had IVDS. The Veteran's treatment record shows that his back continues to cause him pain and that he has had injections for pain. (See e.g. June 2015, April 2016, July 2017, April 2018 treatment records.) In December 2015, the Veteran was referred to occupational therapy for problems with getting in and out of the bath due to his back pain. The Veteran was admitted for spinal fusion from January 25 to January 28, 2016. A January 2016 treatment record showed "partial ankylosis" of the lumbar spine. While one record mentioned partial ankylosis, two other examiners have opined the Veteran did not have ankylosis in his back and all other treatment records are negative for the Veteran having ankylosis in his back. The Board finds that this evidence outweighs the one mention of partial ankylosis and finds that the Veteran's back is appropriately rated as 40 percent disabling. Additionally, the Veteran's record does not indicate he suffers from IVDS severe enough as to warrant a higher disability rating. This does not mean the Veteran's back does not cause him problems. Clearly, he still is in considerable pain and discomfort that affects his life. However, the Veteran's record does not indicate he qualifies for a higher rating. The Veteran has not identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Temporary Total Evaluation for Convalescence Claim The Veteran currently has a temporary total evaluation for convalescence due to his back from January 25, 2016 to August 1, 2016. However, the Veteran has said that his convalescence lasted from January 25, 2016 to June 30, 2017. (See e.g. August 2016 correspondence.) 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 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). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. The United States Court of Appeals for Veterans Claims (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 Veteran had surgery on his back and was hospitalized from January 25 to January 28, 2016. The Veteran's current temporary evaluation lasted until August 1, 2016. A January 2016 note stated the Veteran's convalescence for his back was from January 25, 2016 to June 30, 2017. However, this is a single page note without any indication it was based on a review of the Veteran's record or an explanation as to why it was found the Veteran's convalescence lasted until June 30, 2017 when the Veteran was home, able to walk to his medical appointments, and did not appear to suffer any complications for him surgery. Therefore, the Board places little probative weight on this letter. In a May 2016 back examination, the examiner noted the Veteran's spouse said that he was unable to help himself with activities of daily living and that she had to help him get out of bed, bathe, and dress. Treatment records from September 2016 to July 2017 show the Veteran continued to have pain in his back. However, in his physical therapy notes, it was reported the Veteran came to his appointments by walking, sometimes without an assistive device, and sometimes with the use of a rollator. The Veteran was able to exercise on the recumbent bike and was able to do his physical therapy. The Board also notes in August 2016 treatment records, the Veteran was still struggling with back pain but that he felt like things were slowly getting better. The Veteran's record shows that he continued to experience pain in his back. However, the record does not show complications following surgery and there is no indication that the Veteran's back disability required house confinement or necessitated use of a wheelchair or crutches (prohibited weight bearing). Hence, to the extent the Veteran experienced post-surgical complications, they did not rise to the level to be considered "severe post-operative residuals," as contemplated by 38 C.F.R. § 4.30. As such, there is no evidence that the Veteran underwent a surgical procedure that necessitated a longer convalescence that he already has or that he suffered from severe post-operative residuals, or was immobilized by cast. Accordingly, the preponderance of the evidence is against the grant of a temporary total rating based upon convalescence prior to January 25, 2016 and after August 1, 2016. SMC Claim The Veteran contends that he is entitled to SMC prior to January 25, 2016 and after August 1, 2016. The Veteran has stated that his claim is based on a housebound rate as well as the need for aid and attendance. The Board has considered both claims. SMC provided by 38 U.S.C. § 1114 (s) is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350 (i). SMC is available when, as the result of service-connected disability, "a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114 (l). Thus, SMC is payable where a veteran suffers from service-connected disability that renders him so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need or aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352 (a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need). It is noted that, in order for the appellant to prevail in her claim, the evidence must show that it is a service-connected disability that has resulted in the Veteran being in need of regular aid and attendance. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). Prior to January 25, 2015 and after August 1, 2016 the Veteran did not meet the statutory requirement for SMC. Additionally, the evidence of record does not show the Veteran is permanently housebound by reason of his service-connected disabilities. As discussed above, the Veteran often left his home to go to physical therapy appointments. While the Veteran's record, as discussed above, shows that he struggles with chores, activities, and his spouse assists him in many activities, there is nothing in the record that indicates the Veteran is substantially confined to his home, though he may experience pain and discomfort when leaving his home. While the Veteran had difficulty bathing and dressing at some points due to his back (see discussion of evidence above), there is no indication the Veteran was in such need for aid and attendance that he couldn't attend to the wants of nature, required help keeping him safe from hazards at home or outside, or that he was bedridden such that his spouse had to care form him completely. Therefore, SMC will be denied prior to January 25, 2016 and after August 1, 2016. This does not mean the Board does not believe the Veteran relied on his spouse for help or that he didn't have difficulty leaving the house. Simply, it means that the Veteran's impairment did not rise to the level as to warrant SMC for either the housebound rate or based upon aid and attendance. That the Veteran had severe back problems is not the question. If he did not have such a problem, there would be no basis for the TDIU finding. The Board notes the Veteran had knee surgery in July 2017 and had complications with infection and hardware removal. However, this cannot be the basis for a finding of SMC as the Veteran is not service-connected for any knee disabilities. Regarding all the above, the Board acknowledges the Veteran's statements that he believes his back disability is worse than indicated by his disability rating. The Board also acknowledges the Veteran continues to seek treatment for his condition. The Board also understands the Veteran believes he is entitled to a longer temporary evaluation for convalescence and SMC. However, while the Veteran is competent to report symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his back disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent objective evidence of record and has weighed it as discussed above. The Board finds the examinations discussed above to be adequate because the examiners saw the Veteran in person, reviewed her file, and conducted all appropriate tests necessary. While the Veteran's condition causes many problems, it is important for the Veteran to understand that this is the basis for the current findings. Regarding the Veteran's back disability, while it is clear it is a problem, it is also important for the Veteran to understand that this is the basis for the current findings and the ratings assigned. If his back did not cause him problems, there would be no basis for compensable ratings, or the grant of the higher evaluation, the only question is the degree. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.