BVA9500902 DOCKET NO. 93-06 807 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a temporary total disability rating beyond February 28, 1991, under 38 C.F.R. 4.30. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran had active military service during World War II. This appeal arises from a June 1992 rating decision of the St. Paul, Minnesota, regional office (RO) that granted an extension of the veteran's temporary total disability rating from January 31, 1991, through February 28, 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he is entitled to be assigned a temporary total disability rating beyond February 28, 1991. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran is entitled to a temporary 100 percent disability evaluation attributable to therapeutic immobilization of one major joint or more through March 31, 1991. FINDINGS OF FACT 1. The veteran has presented a plausible claim. 2. All relevant evidence necessary to an equitable disposition of the veteran's claim has been obtained by the RO. 3. The veteran was hospitalized from December 6-13, 1990, for surgery for his service-connected degenerative disc disease of the lumbosacral spine, specifically for decompression of L3 to L5 with posterior spinal fusion at L4-5 with a left iliac crest bone graft. 4. The veteran required use of an immobilizing back brace through March 1991. CONCLUSION OF LAW The veteran has provided evidence sufficient to support an extension of a temporary period of total disability through March 31, 1991. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 4.30, 4.45 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has stated a well-grounded claim, that is, one that is plausible. 38 U.S.C.A. § 5107 (a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The appellant having satisfied his initial burden, the Department had a duty to assist him in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). The RO has obtained relevant medical treatment records relating to the veteran's surgery and subsequent treatment and has fully satisfied the duty to assist. The veteran was awarded a 20 percent service connected disability rating for degenerative disc disease of the lumbosacral spine under diagnostic code 5293 by rating action of May 1990. Service connection for this condition is secondary to a service connected shell fragment wound of the right hip with compound, comminuted fracture of the femur. In January 1991, the veteran's representative filed with the RO a statement from Manuel Pinto, M.D., dated in November 1990, indicating the necessity of surgery for the veteran as a result of L4-5 lumbar spinal stenosis combined with degenerative disc disease and degenerative spondylolisthesis L4-5. Dr. Pinto stated that the surgery would take place on December 6, 1990, and would consist of lumbar decompression, L3 to S1; posterior lumbar fusion L4-5; autogenous iliac crest grafting; and CD instrumentation. Subsequent reports obtained from Dr. Pinto indicate that the veteran underwent surgery on December 6, 1990, and was released from the hospital on December 13, 1990. A hospital discharge summary indicates that the veteran was moving well post-operatively and was alert and oriented. His wounds were noted to remain clean and dry, and he was neurologically intact. Arrangements were made for home help. By rating action of July 1991, a period of temporary total disability was granted from December 6, 1990, to January 31, 1991. In August 1991, the veteran's representative requested an extension of temporary total disability and submitted in support a letter from Dr. Pinto, dated August 1991, indicating that the veteran had recovered "quite nicely" from his surgery. Dr. Pinto indicated that he anticipated that the veteran would be able to return to some type of work with restrictions at approximately eight months post-surgery. By rating decision of September 1991, entitlement to an extension of temporary total disability beyond February 1, 1991, was denied. The veteran's representative filed a notice of disagreement (NOD) in October 1991. Following issuance of a Supplemental Statement of the Case, the RO received a letter from Dr. Pinto dated in October 1991 indicating that the veteran had been precluded from lifting, bending, or twisting post- operatively for three to four months. The doctor further indicated that the veteran required therapy exercises to strengthen his muscles, which had been immobilized for four months in a brace. The veteran completed his VA Form 1-9, substantive appeal, in March 1992, relying on Dr. Pinto's letter in which he stated that the veteran would be able to return to some type of work eight months post-surgery. He noted that the fact that he is doing well post-surgery does not mean he is able to work. In June 1992, further treatment notes from Dr. Pinto and a complete copy of the discharge summary were received and associated with the file. The treatment notes contain some duplications of evidence previously submitted, but do contain additional entries not previously submitted. Significantly, it is noted that, on March 8, 1991, Dr. Bartie reported that the veteran was doing very well, with neurological status completely intact, allowing him to do some isometric exercises. It was noted that the veteran should be gradually weaned out of the brace over the next four weeks. On May 21, the notes indicate that the veteran was doing quite well and had been mowing the lawn and was planning a big fishing trip. The veteran reported some "perfectly tolerable" aching in his back when he did too much. Again in October, the veteran was noted to be doing quite well, with some occasional aching when he had to do repetitive bending and with some trouble with flexibility. It was noted that the veteran had trouble putting on his shoes. In June 1992, the RO issued a rating decision granting extension of temporary total disability through the end of February 1991. The veteran filed an NOD with that decision in December 1992. In a statement submitted subsequently, the veteran contended that weaning from the brace took three and a half months The Secretary of Veterans Affairs has the authority and responsibility to issue a schedule of disability ratings. 38 U.S.C.A. § 1155 (West 1991). The Schedule for Rating Disabilities is contained in 38 C.F.R., Part 4. Pursuant to the schedule, assignment of a temporary total (100 percent) disability rating is authorized for convalescence from certain enumerated hospital or outpatient treatments of service connected disabilities. Temporary total disability ratings may be assigned for periods of one, two, or three months from the first day of the month following hospital discharge or outpatient release if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence or for surgery with severe post-operative residuals, including therapeutic immobilization of one major joint or more. 38 C.F.R. § 4.30 (1991). There are other conditions under which a temporary total rating may be appropriate that are not discussed herein as they are not applicable in this case. This veteran did require surgery for a service-connected condition, and the medical treatment notes from Dr. Pinto indicate that the veteran was using a brace that immobilized his back post-surgery. One of the conditions for which a temporary total disability rating may be applied requires therapeutic immobilization of one major joint or more. The rating schedule provides that the lumbar vertebrae are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (1993). It is therefore appropriate to consider immobilization of the lumbar vertebrae as if there were immobilization of a major joint. On March 8, treatment notes indicated that the veteran was to begin being weaned from the brace. A Summary of Clinic Visit from the Minnesota Spine Center, dated March 8, 1991, contained the recommendation "wear brace for another 3 weeks" and recommended isometric exercises for strengthening. The summary recommended a follow-up visit in three months. On May 21, 1991, treatment notes reflect that the veteran was doing quite well and was happy with the results of the surgery. The veteran was reported to have been mowing the lawn and to be planning a big fishing trip. It was noted that the veteran reported some occasional aching in his back, especially when he did too much, but that it was perfectly tolerable. A separate summary noted the recommendation to wear a corset when working in the yard. It is clear from these notations that the veteran began to be weaned from the immobilizing back brace on March 8, 1991, although he may have continued its use on a gradually decreasing basis until fully free of dependence upon it. The veteran has stated that he continued to require the brace until June 1991. It is clear from the treatment notes that the veteran was engaged in at least some strenuous activity before that time with the recommended use of a corset rather than a brace, and that his back no longer required constant immobilization. Given the clear evidence that the veteran required an immobilizing back brace until March 8, 1991, at which time gradual weaning from its use was to begin and to last over three or four weeks, extension of the period of temporary total disability for an additional month beyond February 28, 1991, is warranted. Notwithstanding the veteran's contention that he was not fully weaned from the back brace until June, it is clear that he had improved substantially prior to that time, so substantially that he was doing yard work by May. There is no evidence that the veteran required complete, constant immobilization of the back beyond March 8, 1991, at which point weaning from the back brace began. The assignment of an additional month of temporary total disability to account for the three weeks during which reliance on the brace was to be diminished is granted under 38 C.F.R. § 4.30. ORDER The veteran is to be assigned a temporary total disability rating under 38 C.F.R. § 4.30 through March 31, 1991. I. S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.