Citation Nr: 22040239 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 14-32 680 DATE: July 14, 2022 ORDER Entitlement to an extension of a temporary total (100 percent) disability rating beyond April 30, 2013, for convalescence purposes following surgery for degenerative disc disease and degenerative joint disease of the cervical spine (cervical spine disability) is denied. REMANDED Entitlement to service connection for disability manifested by multiple joints arthritis is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 15, 2020, and thereafter in excess of 20 percent for cervical spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity (RUE) radiculopathy disability is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity (LUE) radiculopathy disability is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 15, 2020, and thereafter in excess of 20 percent for right shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for left wrist disability is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) disability is remanded. FINDING OF FACT The Veteran did not require convalescence beyond April 30, 2013, following his March 7, 2013, surgery for his cervical spine disability. CONCLUSION OF LAW The criteria for an extension of a temporary total (100 percent) disability rating beyond April 30, 2013, for convalescence purposes following surgery for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971 and from February 2003 to April 2004, which includes service in the Republic of Vietnam and the Southwest Asia theater of operations. His awards include the Army Commendation Medal and Bronze Star Medal. The Veteran has had a combined schedular VA disability rating of 100 percent from March 29, 2013, and a total rating based on individual unemployability from December 11, 2019. Also he has been awarded special monthly compensation pursuant to (1) 38 U.S.C. 1114(s) from March 29, 2013, to May 1, 2013; (2) 38 U.S.C. 1114(k) from July 10, 2013; and (3) under 38 U.S.C. 1114(s) from June 21, 2021, to September 30, 2021. These matters come before the Board of Veterans' Appeals (Board) from March 2012, November 2012, December 2013, March 2014, and March 2015 rating decisions. In a March 2020 decision, the Board included the issue of TDIU as part of the increased rating claims on appeal and recharacterized the claim of service connection for arthritis (unspecified location) as a disability manifested by multiple joint arthritis. Then, in pertinent part, the Board reopened the previously denied claims for service connection for hypertension and sleep apnea, as well as awarded entitlement to a TDIU. The Board next remanded the issues of increased ratings for cervical spine disability, bilateral upper extremity (BUE) neurological disability, right shoulder disability, left wrist disability, and psychiatric disability, and the issue of extension of temporary total rating (TTR) following convalescence for surgery for cervical spine disability, all for additional development. Specifically, the Board remanded the claims to afford the Veteran with current VA examinations and medical opinions, to obtain updated VA treatment records, and to provide an additional opportunity for the Veteran to submit a VA Form 21-4142 or related private medical records. With regard to the issue herein decided, a VA medical opinion was obtained, and the VA treatment records were updated. Regarding the request for assistance to obtain private treatment records, the Veteran submitted completed VA Form 21-4142 and VA sought to obtain those records. Although a remand is necessary to obtain outstanding records from military medical facilities, there is no indication that those records are relevant to the issue decided herein as those records pertain to treatment dated years after the applicable period for considering the issue of extension of a TTR beyond April 30, 2013. The Board finds there was substantial compliance with the previous remand directives, and the Board finds that it may proceed with adjudication of the issue decided herein. See Dyment v. West, 13 Vet. App. 141 (1999). A During pendency of appeal, the RO increased the assigned ratings from 10 to 20 percent for both cervical spine and right shoulder disabilities, each effective from December 15, 2020. See Rating Decision (June 2021). The grant of an increased rating during the course of the appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran has maintained that he is seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. See Id. Following the additional development, in the June 2021 rating decision, the RO awarded service connection for left shoulder disability, rated as 20 percent disabling, effective from March 29, 2013, and for erectile dysfunction, rated noncompensable, effective July 10, 2013. As these claims have been granted in full, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The March 2020 Board decision also remanded the issue of entitlement to an earlier effective date for award of service connection for cervical spine disability, issues of service connection for hypertension and disability manifested by multiple joint arthritis for the issuance of a statement of the case (SOC). The record shows that a July 2020 SOC was issued, but the Veteran did not submit a substantive appeal as to that claim. Accordingly, it is not before the Board at this time. See To the extent that additional VA treatment records dated through March 2022 were associated with the claims folder following receipt of the Veteran's waiver of initial consideration, those records are not relevant to the issue of extension of temporary total rating beyond April 30, 2013, for convalescence following cervical spine surgery. The Board finds that it may proceed with adjudication of those claims without prejudice to the Veteran. Those records will be considered in readjudication of remaining claims on appeal addressed in the remand portion below. REFERRED Regarding the issue entitlement to an earlier effective date for award of TDIU, contrary to the Veteran's attorney's assertion, it is not currently on appeal before the Board at this time. See Third Party Correspondence (August 2021). The May 2020 rating decision implemented the award of entitlement to a TDIU and assigned an effective date of December 11, 2019. The Veteran submitted a VA Form 20-0996, Decision Review Request: Higher Level Review, regarding the May 2020 rating decision that assigned an effective date for the award of TDIU. In a March 2021 rating decision, the RO denied the assignment of an earlier effective date for award of TDIU. In June 2021, the Veteran again submitted a VA Form 20-0996, Decision Review Request: Higher Level Review, regarding the assigned effective date for award of TDIU. However, the May 2020 rating decision was issued pursuant to the Appeals Modernization Act (AMA) review system, the issue of an earlier effective date for award of TDIU cannot be reconsidered under another Higher Level Review request. See 38 C.F.R. § 3.2500(c)(2). Instead, the Veteran or his representative could submit either a Supplemental Claim (VA Form 20-0995) or an Appeal to the Board (VA Form 10182). This matter is referred to the Agency of Original Jurisdiction (AOJ) for adjudication for appropriate notification and any subsequent action as deemed necessary. Entitlement to an extension of a TTR (100%) disability rating beyond April 30, 2013, for convalescence purposes following surgery for cervical spine disability. On March 29, 2013, the Veteran filed a claim for increased rating for cervical spine disability, and in support of his claim, the Veteran submitted a hospital discharge summary that showed he had undergone cervical spine surgery on March 7, 2013. A December 2013 rating decision granted a TTR based on convalescence following surgical treatment for the service-connected cervical spine disability, under 38 C.F.R. § 4.30, from March 29, 2013, through April 30, 2013. The Veteran asserts that an extension of this temporary total evaluation is warranted based severe pain following the surgery, which required pain management care for three months. See VA 21-4138 Statement In Support of Claim (January 2014). The Board concludes that an extension of the temporary total evaluation beyond April 30, 2013, is not warranted as the Veteran did not require additional period of convalescence following his March 7, 2013, surgery for his cervical spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30, a temporary total disability rating will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of 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 (regular weight- bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted. Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request based on (2) and (3) above. 38 C.F.R. § 4.30. The medical records show that on March 7, 2013, the Veteran underwent a private discectomy and arthrodesis with application of anterior fixation plate because of severe cervical stenosis C4-5 and C5-6 with myelopathy. The Veteran had private post-operative follow treatment on March 18, 2013, April 17, 2013, and June 24, 2013. See Medical Treatment Record - Non-Government Facility (January 2014). These private treatment records show that the Veteran continued to complain of neck pain as well as shoulder and upper extremity pain, but his symptoms improved in the weeks following the surgery. The March 18, 2013, private treatment record noted the Veteran had presented for his first postoperative visit. The incision was well-healed, and he complained of little discomfort in neck and shoulders, but otherwise he was "happy with his progress" and assessed as "doing well." The April 2013 private treatment record shows the Veteran presented for a postop evaluation, and he complained of intermittent burning sensation in shoulders. Clinical examination revealed his wound was "ok", he had normal posture and strength in his upper extremities and no evidence of muscle spasms. He was considered as "doing well." The June 2013 private treatment record shows the Veteran continued to complaint of pain and muscle spasms across shoulders and under shoulder blades. Although on initial clinical examination, it was noted that he was slow to show range of motion, later in the examination, he showed quicker movements without complaints. The Veteran was considered "stable" and released from care. See Medical Treatment Record - Non-Government Facility (September 2020). In addition, contemporaneous VA treatment records show that the Veteran reported improvement in his neck pain following his cervical spine surgery. A March 20, 2013, VA psychiatric treatment note shows that the Veteran reported he had undergone his cervical spine surgery and it was "going well." An April 24, 2013, VA primary care note showed the Veteran presented for follow up after his neck surgery. It was noted that he was recovering well, and the Veteran reported "he does feel better postop." Clinical examination of the neck revealed a well healed anterior surgical scar and range of motion was considered "ok." The Veteran was assessed with "improved neck pain after C-spine surg." Pursuant to the Board's March 2020 remand directives, the record also contains a January 2021 VA medical opinion that address the question of length of convalescence required following the Veteran's cervical spine surgery. The VA examiner opined that the Veteran had likely required convalescence of six weeks following his March 7, 2013, cervical spine surgery, and a review of the medical records did not show that he had severe postoperative residuals that necessitated use of a wheelchair or crutches or otherwise prohibited regular weight bearing. The supporting rational was six weeks is considered the usual convalescence period for a cervical fusion. Although the medical records reflect that the Veteran's complaints that he did not get any relief from the 2013 surgery, there is no indication that he endured severe postoperative residuals that necessitated use of a wheelchair or crutches, or otherwise prohibited regular weight-bearing. Based on the foregoing, the Board finds that the most persuasive evidence of record shows that the Veteran did not required convalescence for his cervical spine disability beyond April 30, 2013. The VA examiner concluded that the Veteran likely required six weeks of convalescence following his March 7, 2013, cervical spine surgery, which comes prior to the current assigned date of April 30, 2013, and found a review of the medical evidence did not show he suffered severe postoperative residuals as result of his surgery. While the follow-up private and VA treatment records show that the Veteran continued to have neck pain and upper extremity neurologic symptomatology, these treatment records do no indicate severe postoperative residuals. Rather, the private and VA treatment records demonstrate that the Veteran reported improved symptomatology in the weeks following his surgery, he had "okay" range of motion. Such symptomatology does not indicate severe post-operative residuals. There is also no evidence incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement. See 38 C.F.R. § 4.30. Thus, the weight of the evidence is against finding entitlement to an extension of temporary total rating beyond April 30, 2013. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. As explained below, remand is necessary to ensure that VA has met its duty to assist the claimant in the development of his claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a rating in excess of 30 percent for PTSD. The record reflects that the Veteran was afforded a VA PTSD examination in January 2021 and the relevant evidence in that examination report was not subsequently considered in a June 2021 supplemental statement of the case (SSOC) prior to certification and return of the appeal to the Board as is required by 38 C.F.R. §§ 19.31(b), and 19.37(a). As this evidence was received prior to the transfer to the Board and its initial consideration by the agency of original jurisdiction (AOJ) cannot be waived, a remand is necessary for the issuance of a SSOC. 38 C.F.R. § 19.31(b). A remand will also allow initial consideration of additional VA treatment records associated with the claims folder since the June 2021 SSOC. 38 C.F.R. § 19.37(b). 2. Entitlement to an initial rating in excess of 20 percent for RUE radiculopathy is remanded.. 3. Entitlement to a rating in excess of 20 percent for LUE radiculopathy is remanded. 4. Entitlement to an initial rating in excess of 10 percent prior to December 15, 2020, and thereafter in excess of 20 percent for cervical spine disability is remanded. 5. Entitlement to an initial rating in excess of 10 percent prior to December 15, 2020, and thereafter in excess of 20 percent for right shoulder disability is remanded. 6. Entitlement to a rating in excess of 10 percent for left wrist disability is remanded. 7. Entitlement to service connection for disability manifested by multiple joints arthritis is remanded. The Veteran submitted a completed VA 21-4142, Authorization for Release of Information, for treatment records from medical facilities at Kessler Air Force Base (AFB) and Eglin AFB. Shortly thereafter, the record request was rejected because the "provider listed is non-private." See Correspondence (September 2020). No additional steps to secure these federal records and associate them with the claims file are documented. Pertinently, the Veteran did not indicate the time frame or medical conditions for which these records referenced. However, in a previous correspondence the Veteran identified treatment from Eglin AFB medical facility in 2015 and the record does contain treatment records from Kessler AFB dated thru 2017, which appear to predominantly involve orthopedic and neurologic complaints. A remand is therefore required to obtain these outstanding relevant federal records. See 38 C.F.R. § 3.159(b)(2). The most recent VA treatment records associated with the claims folder reflect that the Veteran requested an orthopedic consult for increased left wrist and x-ray of the left wrist was ordered. See CAPRI (April 2022). On remand, the Veteran's VA treatment records should be updated in the claims folder. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). 8. Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. The Veteran contends that his hypertension is a result of his period of service, to include as aggravated by his second period of service. See VA 21-4138 Statement In Support of Claim (September 2012). In the alternative, he contends his hypertension is secondary to a service-connected disability. See VA 21-526b Veteran Supplemental Claim (May 2012). The Veteran's medical records reflect that he experiences hypertension and that this disability existed prior to his second period of active service from February 2003 to April 2004. See Medical Treatment Record - Government Facility (September 2002). Service treatment records (STRs) include a history of labile hypertension noted on a May 1987 Army National Guard periodic examination, and during his second period of active service, there were findings of elevated blood pressure readings (e.g., August 2003, September 2003, and October 2003). His hypertension medication was changed in August 2003, and it was assessed as not well controlled in October 2003, and there was another discussion regarding his hypertension medication. A November 2003 STR shows his hypertension was considered under control. See STR-Medical (September 2012). In the March 2020 remand, the Board previously acknowledged that the Veteran is presumed to have been exposed to Agent Orange in Vietnam during his initial period of service from February 1969 to February 1971 and the National Academies of Sciences, Engineering & Medicine's (NAS) moved hypertension from the "limited or suggestive" category and indicated that there is now "sufficient evidence" of an association between hypertension and Agent Orange exposure. See Veterans and Agent Orange: Update 11 (2018). It was also acknowledged that VA's own regulatory documents have indicated a possible association between psychiatric disorders and cardiovascular disease. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). Lastly, the Board acknowledged in its prior decision that hypertension is recognized by VA as being a potential complication of diabetes. The Board previously remanded the issue to obtain a VA medical opinion that addressed whether the Veteran's hypertension had manifested within a year of his first period of service, or is related to Agent Orange exposure in service, was aggravated by his second period of active service, or was caused or aggravated by service-connected PTSD and/or diabetes mellitus. The VA medical opinions obtained in January 2021 do not adequately address the questions previously posed by the Board, and a remand is required to ensure compliance with the Board's previous remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the January 2021 VA medical opinion considered whether the Veteran's hypertension was causally related to his exposure to environmental hazards during his deployment in Southwest Asia, but it did not address whether the Veteran's hypertension was related to his presumed exposure to herbicide agents. Nor did the medical opinion address whether the Veteran's hypertension incurred in or manifested to a compensable degree within one year of his first period of active service, or whether it was aggravated by his second period of active service. Regarding the secondary service connection basis, the January 2021 VA medical opined that the Veteran's hypertension was less likely than not aggravated by a service-connected disability. However, the examiner did not articulate a reasoned explanation for his/her conclusion that an opinion could not be issued without resort to mere speculation beyond stating that "there is a paucity of evidence in the available medical record." See Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). Further, the examiner did not address whether the Veteran's hypertension was proximately caused by his service-connected disability. For a secondary service connection claim, a VA medical opinion should address both causation and aggravation prongs; separate findings and rationales should be provided for each one. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). Given the foregoing, the Board cannot rely on the January 2021 VA medical opinions in their present form and as they are inadequate, and a remand is needed to obtain new VA medical opinion that complies with the Board's previous instructions. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain the Veteran's treatment records from medical facility at Kessler AFB dated since 2017 and his treatment records from medical facility at Eglin AFB. All requests for information as well as all responses must be documented in the claims file. 2. Obtain the Veteran's VA treatment records for the period from March 2022 to the Present. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's hypertension. The examiner must review the claims file. Based on review of the record, medical and lay evidence, consider the symptoms in service and thereafter, including the nature, onset, progression, and severity of the Veteran's reported symptoms. The examiner is asked to answer the following: (a.) Whether the Veteran's hypertension "approximately at least as likely as not" began during his period of active service from February 1969 to February 1971? Explain. (b.) Whether the Veteran's hypertension "approximately at least as likely as not" manifested within one year after discharge from the period of active service from February 1969 to February 1971? Explain. (c.) Whether the Veteran's hypertension "approximately at least as likely as not" is related to related to conceded in-service exposure to herbicide agents during his period of service from February 1969 to February 1971? Explain. Consider and expressly address the 2018 Update by the NAS Institute of Medicine, which found, according to the representative, "sufficient evidence of causation" between exposure to herbicide agents and the development of hypertension. The fact that hypertension is not yet on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. (d.) Whether the Veteran's hypertension "approximately at least as likely as not" was permanently aggravated beyond its natural progression by the period of service from February 2003 to April 2004? Explain. Consider the documented findings of elevated blood pressure readings in August 2003, September 2003, and October 2003, assessment of hypertension as not well control in October 2003, and any adjustments in medications during his second period of service. (e.) Whether the Veteran's hypertension "approximately at least as likely as not" was caused by service-connected PTSD and/or diabetes mellitus? Explain. 4. Whether the Veteran's hypertension "approximately at least as likely as not" was aggravated by service-connected PTSD and/or diabetes mellitus? Explain. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M., 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.