Citation Nr: 1315324 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-17 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a temporary total rating under 38 C.F.R. § 4.30 for convalescence following right shoulder surgery performed on April 27, 2007. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to December 1986, and from April 1987 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2009, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of the hearing is of record. In April 2010, the Board remanded the claim for additional development and adjudicative action. The case was returned to the Board for further appellate review. In a September 2010 rating decision, the RO granted service connection for impingement syndrome, right shoulder with status post rotator cuff and arthroscopic surgical treatment, and assigned a 10 percent disability evaluation, effective September 17, 2007. The Board notes that this issue is not currently on appeal. The Board has reviewed the contents of the Veteran's Virtual VA and found no medical or other evidence pertinent to this appeal that is not in this claims file. FINDINGS OF FACT 1. The Veteran underwent right shoulder arthroscopy with subacromial decompression and Mumford procedure in April 2007. 2. Service connection for impingement syndrome, right shoulder with status post rotator cuff and arthroscopic surgical treatment was granted in a September 2010 rating decision, effective September 17, 2007. CONCLUSION OF LAW The criteria for entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for convalescence following right shoulder surgery on April 27, 2007, have not been met. 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. As will be explained below, in the present case, there is no legal basis upon which the benefits may be awarded. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). II. Decision A total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or 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. 38 C.F.R. § 4.30(a). A temporary total convalescent rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery. 38 C.F.R. § 4.30. Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability, and not rated under 38 C.F.R. § 4.30. Extensions beyond the initial three months may be made for a maximum of one year. 38 C.F.R. § 4.30(b)(2). On April 27, 2007, the Veteran underwent right shoulder arthroscopy with subacromial decompression and Mumford procedure at a private surgery center. In a September 2010 rating decision, the RO granted service connection for impingement syndrome, right shoulder with status post rotator cuff and arthroscopic surgical treatment, and assigned an effective date of September 17, 2007. As previously noted, temporary total ratings are only available for service-connected disabilities. In this case, however, service connection for the right shoulder disability had not been established in April 2007, the date of the surgery, but rather September 2007, several months after the surgery. Therefore, a temporary total rating following surgery for the disability is not warranted. Absent service connection for that disability at that time (i.e., in April 2007), the sought after temporary total disability rating may not be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). ORDER A temporary total rating under 38 C.F.R. § 4.30 for convalescence following right shoulder surgery on April 27, 2007, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs