Citation Nr: 1757074 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-01 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an extension of a temporary total disability rating for convalescence pursuant to 38 C.F.R. § 4.30, following left shoulder surgery on October 17, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to October 1998, with 4 years prior active service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2017 Board videoconference hearing and a transcript of this hearing is of record. FINDING OF FACT The Veteran underwent surgery for his service-connected left shoulder disability on October 17, 2012, and he did not return to work until February 4, 2013. CONCLUSION OF LAW The criteria for a temporary total disability rating for surgery performed on the Veteran's left shoulder on October 17, 2012, have been met to February 3, 2013. 38 U.S.C. § 1155 (West 2014); 38 C.F.R § 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria The Veteran contends that a temporary total rating is warranted for surgery performed on his left shoulder in October 17, 2012. Under 38 C.F.R. § 4.30 (a), a total disability rating will be assigned 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 hospital discharge, if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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. Notations in the medical record as to the 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. See Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. 427 (1998). II. Analysis In a June 2013 rating decision the Veteran was granted a temporary 100 percent rating from October 17, 2012, to December 1, 2012 for his October 2012 surgery on his service-connected left shoulder. The Veteran contends he is entitled to a temporary total rating to March 1, 2013 as he was unable to work until March 1, 2013. The issue before the Board is whether the Veteran is entitled to a temporary total rating for his October 2012 surgery on his service-connected left shoulder for the period of December 1, 2012 to March 1, 2013. The Veteran submitted several statements from his private doctor regarding his service-connected left shoulder during the period of consideration. A February 2013 private medical record noted the Veteran felt 90 percent improved and wanted to return to full duty. The plan of care indicated the Veteran was to return to full duty. However, a March 2013 private treatment record indicated the Veteran could return to full duty in March 2013. In his September 2017 Board videoconference hearing the Veteran explained that he returned to work on February 4, 2013, but that he was limited to restricted duty such that he could not do any physically strenuous work. The Veteran indicated in March 2013 he returned to full duty without any restrictions. In addition the Veteran's employer, StandardAero, submitted a September 2017 record which indicated the Veteran was on leave of absence from work from December 3, 2012 to February 4, 2013. Moreover, the Veteran's representative submitted a September 2017 statement indicating the Veteran was cleared for full duty in February 2013. The Board finds the Veteran is entitled to a temporary 100 percent rating under 38 C.F.R. § 4.30 from October 17, 2012 to February 3, 2013. The evidence of record indicates the Veteran returned to work on February 4, 2013. While the evidence of record seems contradictory as to whether the Veteran returned to full duty on February 4, 2013 (see February 2013 private treatment record and September 2017 representative statement) or restricted duty (See March 2013 private treatment record and September 2017 Board Videoconference Hearing Testimony) it is clear that the Veteran returned to work in some form on February 4, 2013. See September 2017 Correspondence from StandardAero. As the Veteran returned to work on February 4, 2013, even if it was for restricted duty, he was no longer convalescing at that time therefore a temporary total rating is only warranted from December 1, 2012, to February 3, 2013. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a temporary total disability rating to from October 17, 2012 to February 3, 2013 for convalescence pursuant to 38 C.F.R. § 4.30, for left shoulder arthroscopic surgery is granted subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs