Citation Nr: 22044645 Decision Date: 08/06/22 Archive Date: 08/06/22 DOCKET NO. 19-02 785 DATE: August 6, 2022 ORDER An extension for a temporary total evaluation for convalescence through March 30, 2015, following surgery for a service-connected cervical spine disability is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The Veteran underwent surgery for his service-connected cervical spine disability on December 16, 2014; resolving all reasonable doubt in the Veteran's favor, his cervical spine disability required convalescence through March 30, 2015. CONCLUSION OF LAW The criteria for an extension of a temporary total evaluation for convalescence through March 30, 2015, following surgery for a service-connected cervical spine disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from January 1992 until his retirement in December 2012. He testified at a virtual Board hearing before the undersigned in January 2022. A transcript of the hearing is associated with the claims file. Extension of Temporary Total Evaluation for Convalescence Under 38 C.F.R. § 4.30, a temporary total rating for convalescence 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 the hospital discharge when treatment for a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of 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 (regularly weight-bearing prohibited); or (3) immobilization by cast. An extension of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Adjudication Officer. 38 C.F.R. § 4.30(b). Extensions beyond the initial three months may be made for a maximum of one year. 38 C.F.R. § 4.30(b)(2). 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). The inability to return to any employment indicates a need for continuing convalescence under 38 C.F.R. § 4.30. See Seals v. Brown, 8 Vet. App. 291, 296 (1995). The Veteran contends he is entitled to a convalescence period greater than three months because he was unable to return to work from the date of his surgery (December 16, 2014), to August 5, 2015. See 2016 VA Form 21-4138. In January 2022, the Veteran testified that his neck was too painful and swollen to attempt physical therapy or stop full-time use of his neck brace until December 2015. See January 2022 hearing transcript. By way of history, on December 16, 2014, the Veteran underwent surgery (fusion) for his service-connected cervical spine disability. An August 2017 rating decision awarded a temporary total rating for post-surgical convalescence from December 16, 2014, the date of the surgery, until February 1, 2015. During this time, the Veteran was directed by his doctors to wear a neck brace/collar and restrict activities. X-rays showed no complications and the Veteran reported the resolution of post-operative arm pain, while continuing to experience "minor" neck discomfort and right arm numbness. See December 2014 and January 2015 private treatment records. The Veteran appealed and requested an extension of the temporary total rating. Private treatment records show that the Veteran's medical providers directed the Veteran to continue with activity restrictions and wearing a neck brace until March 19, 2015. At that time, he was three months post-surgery. Although he complained of some right hand numbness, it was slightly improved from his last visit. He also reported some "mild" discomfort in his right arm, neck, and shoulders. X-ray studies showed solid fusion forming without complications. His medical provider discontinued his restrictions and bracing; physical therapy was scheduled. The Veteran was told the discomfort and numbness might take some time to improve. On a follow-up visit in May 2015, the examiner noted the Veteran's "significant" improvement in symptoms, including neck pain and upper extremity numbness and tingling. Neurological examination was normal. Gradual improvement was noted, and the postoperative results were deemed "acceptable," with no further surgery necessary. The Veteran was referred for pain management and physical therapy. Additionally, an October 2015 VA outpatient treatment record notes the Veteran was encouraged to be physically active within his neck and other orthopedic (back, shoulder, achilles) limitations. Based on the evidence of record, the Board finds that the Veteran meets the requirements for an extension of a temporary total evaluation for convalescence following surgery. In this case, the Veteran experienced post-operative residuals, to include continued complaints of pain and numbness, and was directed to wear a neck brace and limit activities until March 18, 2015. An even longer extension, however, is not warranted here. The Board acknowledges, and the record shows, the Veteran continued to have some functional limitations eight months after his neck surgery. In this regard, an October 2015 VA treatment record notes the Veteran was precluded from lifting weights due to neck (and back and shoulder) disability. However, the evidence does not show that he had severe post-operative residuals or immobilization beyond March 2015. The Veteran did not have incompletely healed surgical wounds at that time, amputation, or therapeutic immobilization of any joint. He was not confined to his home. Although the Veteran was not working, nothing in the record shows or suggests that his convalescence from neck surgery precluded him from working. Thus, the Board retroactively extends the convalescence period under 38 C.F.R. § 4.30(a)(2) for two months, through March 30, 2015, but no longer. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.