200311-70483

• Court: Board of Veterans' Appeals
• Decided: July 29, 2021
• Docket: 200311-70483
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 07/29/21 Archive Date: 07/29/21

DOCKET NO. 200311-70483 DATE: July 29, 2021

ORDER

A temporary total rating based on convalescence for service-connected lumbar spine surgery from May 5, 2017 to August 15, 2017 is granted.

FINDING OF FACT

From May 5, 2017 to August 15, 2017, the Veteran had continued convalescence from the May 5, 2017 lumbar spine surgery.

CONCLUSION OF LAW

From May 5, 2017 to August 15, 2017, the criteria for a temporary total rating under 38 C.F.R. § 4.30 based on the lumbar spine surgery, are 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 from April 2001 to April 2004, from June 2006 to November 2007 and from January 2013 to January 2014.

In October 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2019 rating decision. In November 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301.

A temporary total rating based on convalescence for service-connected lumbar spine.

The Veteran is in receipt of a temporary total evaluation based on surgical or other treatment requiring convalescence for his degenerative disc disease of the lumbar spine from May 5, 2017 to July 1, 2017, pursuant to 38 C.F.R. § 4.30.

The Veteran contends that he did not go back to work until August 15, 2017, a little over three months after the Veteran's May 5, 2017 lumbar spine surgery as directed by his doctor. As a result, convalescence should have been awarded initially until August 15, 2017.

A temporary total convalescence rating (100 percent) 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 and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. This statute provides for temporary total convalescence in 1-month periods.

Additionally, notations in the medical record as to a Veteran's incapacity to work after surgery must be considered in the rating of a claim brought under the provisions of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). Convalescence is "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).

Here, the Veteran was initially award convalescence beginning on May 5, 2017, the date of his lumbar spine surgery. On May 15, 2017, the Veteran's surgeon, Dr. T. H. noted that the Veteran would be unable to work until he released him in three to six months post-surgery date. The Veteran had to followup with Dr. T. H. initially in a month after surgery, then in increments of 3 months. The Veteran was under doctor's orders to refrain from any lifting, pushing, or pulling and to continue to wear his back brace for support until advised and released from Dr. T. H.

Private treatment records from May to October 2017 note the Veteran continued to have follow ups consultations when he was advised to continue to wear his back brace as he reported continued pain and stiffness. The Veteran's employer also documented that the Veteran was on medical leave starting May 5, 2017 until he returned to work on August 15, 2017.

Resolving reasonable doubt in the Veteran's favor, he was entitled to a temporary total rating through the date he returned to work. As the Veteran was working from August 15, 2017, and there is no other indication from the medical evidence or asserted by the Veteran that his lumbar spine surgery caused additional periods of convalescence, the preponderance of the evidence is against an extension beyond that date.

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In summary, a temporary total rating based on convalescence for service-connected lumbar spine surgery from May 5, 2017 to August 15, 2017 is granted.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. McDuffie, 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.