Citation Nr: 1304192	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  10-35 256	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an extension beyond January 31, 2009, for a temporary total evaluation based on the service-connected left shoulder arthritis requiring a period of convalescence.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Cherry





INTRODUCTION

The Veteran served on active duty from March 1969 to February 1972, from January 1973 to December 1974, and from February 2003 to May 2004. 

This case comes to the Board of Veterans' Appeals (the Board) on appeal from a February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which assigned a temporary total evaluation based on the service-connected left shoulder disability requiring a period of convalescence from December 11, 2008, to January 31, 2009.

The Veteran testified at a hearing held in Las Vegas, Nevada, before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with his claims file.

The issue of an increased rating for the left shoulder arthritis has been raised by the record (See Hearing Transcript, p. 16), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The competent medical evidence shows that the left shoulder surgery performed on December 11, 2008, required convalescence until February 18, 2009.


CONCLUSION OF LAW

The criteria for the assignment of a temporary total disability rating for the service-connected left shoulder arthritis due to convalescence to February 18, 2009, but not further, have been met.  38 C.F.R. § 4.30 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in May and July 2009 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  In the May 2009 correspondence, VA notified the appellant of how VA determines the disability rating and effective date.  

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  See Washington v. Nicholson, 21 Vet. App. 191 (2007).  The RO obtained VA and private physical therapy treatment records.  

VA did not obtain a medical opinion addressing whether the Veteran required convalescence beyond January 31, 2009.  The Board, however, finds that a medical opinion is not necessary to decide the merits of the claim. Under the VCAA, VA is obliged to provide an examination or medical opinion based on a review of the evidence of record if VA determines that it is necessary to decide the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 

Admittedly, the threshold for the duty to provide an examination or medical opinion is rather low.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Here, however, the evidence of record is sufficient to decide the claim of entitlement to a temporary total evaluation based on the service-connected left shoulder arthritis requiring a period of convalescence after surgery beyond January 31, 2009.  In light of the VA and private physical therapy treatment records showing the nature of the left shoulder disability, there is no reason for VA to obtain an opinion in connection with this claim.

Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Relevant law and regulations

The provisions of 38 C.F.R. § 4.30 pertaining to temporary total evaluations based upon convalescence provide that 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 or outpatient release that entitlement is warranted.  Total ratings will be assigned under this section if treatment of a service-connected disability resulted 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).

(3) Immobilization by cast, without surgery, of one major joint or more.

The temporary total evaluation can be continued for a period of one, two, or three months effective from the first day of outpatient release.  38 C.F.R. § 4.30 (2012).

The United States Court of Appeals for Veterans Claims (the Court) has held that notations in the medical record as to a veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30.  Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291, 296-97 (1995).  Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery.  Felden, 11 Vet. App. At 430.


Analysis

The Veteran underwent left shoulder surgery performed on December 11, 2008.  The RO assigned a temporary total evaluation based on the service-connected left shoulder disability requiring a period of convalescence from December 11, 2008, to January 31, 2009.

There is no evidence that the surgery resulted in 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).  As for the need for convalescence, the competent medical evidence shows that the left shoulder surgery performed on December 11, 2008, required convalescence until February 18, 2009.

None of the pre-surgical, surgical, or post-surgical VA treatment records, to include records prepared by the surgeon, indicate that the convalescence was necessary past February 18, 2009.  

Private post-operative physical therapy records show that on January 23, 2009, the active range of motion in the left shoulder was the following: forward elevation was to 170 degrees, abduction was to 165 degrees, internal rotation was to 60 degrees, and external rotation was to 65 degrees.  Left shoulder muscle strength was the following: 4 on elevation/flexion, 4- on abduction, 4 on internal rotation, 4- on external rotation, and 3+ on supraspinatus (empty can).  It was noted that the Veteran was able to lift/carry heavy loads if held close to his trunk, that he was now able to participate in a few activities without symptoms, and that he was now able to reach a high shelf with some increased symptoms.  It, however, was also noted that while he had improved in functional status, he continued to have difficulty with recreation and sports, lifting and carrying, and reaching; and that current impairments included pain and muscle weakness.  The physical therapist recommended that the Veteran continue with treatment under the current plan of care with the following modification: seeing him twice a week for three weeks to progress strength and functional mobility.

This treatment record shows that convalescence was necessary past January 23, 2009, a date nearly at the end of January 2009.  Therefore, the question is when did the period of convalescence end.  

On February 18, 2009, slightly more than three weeks after January 23, 2009, the active range of motion in the left shoulder was the following: forward elevation was to 175 degrees, abduction was to 175 degrees, internal rotation was to 65 degrees, and external rotation was to 65 degrees.  Passive range of motion in the left shoulder was the following: forward elevation to 180 degrees, and abduction was to 180 degrees.  Left shoulder muscle strength was the following: 4 on elevation/flexion, 4 on abduction, 4 on internal rotation, and 4- on external rotation.  It was noted that the Veteran was able to lift/carry heavy loads if held close to his trunk.  Despite his symptoms, he was able to participate in all activities.  His sleep was undisturbed and he was able to reach all heights safely and independently.  All goals were achieved with the exception of returning to sports or recreation.  The Veteran was discharged from physical therapy.

The Board finds that this medical evidence shows a need for convalescence until February 18, 2009, but no further.  The Veteran was able to sleep and achieved all physical goals with the exception of returning to sports or recreation.  The Board finds that the medical evidence shows that since he was able to sleep undisturbed, able to participate in all activities, and completed physical therapy, he did not need additional convalescence beyond February 18, 2009.  

Although a private doctor indicated in a May 2009 treatment record that the Veteran would not be able to return to work, that doctor, a specialist in cardiovascular disorders, diagnosed not only status post left shoulder injury but also arteriosclerotic heart disease status post multiple coronary artery bypass graft, post-traumatic stress disorder, and a sprained knee.  That doctor did not indicate that the left shoulder disability alone precluded employment or required additional convalescence.  

The Veteran mainly argues that an extension is warranted because he has had a lot of pain since the surgery requiring extensive use of ibuprofen.  The Board finds that the medical evidence does not show that the appellant's left shoulder pain and resultant medication use were so significant as to require convalescence beyond February 18, 2009.  Further, to the extent that the Veteran alleges that the current rating assigned does not accurate reflect the severity of his shoulder disability, the matter of entitlement to a higher disability has been referred to the RO for further action. 

Based on the foregoing, the Board concludes that an extension to February 18, 2009, but not further, is warranted for a temporary total evaluation based on the service-connected left shoulder arthritis requiring a period of convalescence, subject to the laws and regulations governing the payment of monetary benefits.


ORDER

Entitlement to an extension to February 18, 2009, but not further, for a temporary total evaluation based on the service-connected left shoulder arthritis requiring a period of convalescence is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs