Citation Nr: 18156624 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 12-29 611 DATE: December 11, 2018 ORDER Entitlement to a temporary total disability rating for convalescence through November 30, 2016, for right shoulder rotator cuff surgery is granted. REMANDED Entitlement to service connection for a bilateral ear disability, to include hearing loss and tinnitus, is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that, prior to December 1, 2016, the September 2016 rotator cuff surgery resulted in severe post-operative residuals such as incompletely healed surgical wounds, therapeutic immobilization of the shoulder, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair, with regular weight-bearing being prohibited. 2. The evidence of record does not demonstrate that, since December 1, 2016, the September 2016 rotator cuff surgery resulted in severe post-operative residuals such as incompletely healed surgical wounds, therapeutic immobilization of the shoulder, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair, with regular weight-bearing being prohibited. CONCLUSION OF LAW The criteria for an extension of a temporary total disability rating for convalescence through November 30, 2016, and no later, for right rotator cuff surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REFERRED The issue of entitlement to compensation under 38 U.S.C. § 1151 for right rotator cuff surgery was formally raised by the Veteran in an October 2016 application but has not been adjudicated. It is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from April 1981 to February 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a temporary total disability rating for convalescence beyond October 31, 2016, for right shoulder rotator cuff surgery Pursuant to 38 C.F.R. § 4.30, 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 (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted. The award will be effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following the hospital discharge or outpatient release. In order to attain the temporary total evaluation, the Veteran must demonstrate that his 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, the application of a body cast, a 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. 38 C.F.R. § 4.30(a). 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(b). The Court of Appeals for Veterans Claims has determined that a claimant’s incapacity to work after surgery must be taken into account with respect to showing a need for continuing convalescence under 38 C.F.R. § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291 (1995). The Court has defined convalescence as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” Felden, 11 Vet. App. at 430 (citing Dorland’s Illustrated Medical Dictionary). The Court also defined recovery as “the act of regaining or returning toward a normal or healthy state.” Id. (citing Webster’s Medical Desk Dictionary 606 (1986)). The relevant inquiry is not the amount of time to recover at home, but whether a report, rendered near the time of a hospital discharge or an outpatient release, indicates a surgical procedure was performed that would require at least one month for the claimant to return to a healthy state. Id. Subsequent medical evidence can establish if one or more months of convalescence is needed to recover. Id. Here, the Veteran required several months of physical therapy in order to recover from the September 12, 2016, surgery to repair a tear in his right shoulder rotator cuff. This surgery followed up a January 2015 procedure that unsuccessfully treated his right rotator cuff. The Veteran contends that, because he continued to see his orthopedic surgeon for monthly check-ups and because his surgeon continued to prescribe physical therapy, the temporary total disability rating applied throughout his entire recovery period. His private orthopedic surgeon completed a return to work form in September 2016, which indicated that the Veteran would be required to wear an immobilizer for 5-6 weeks following surgery. The surgeon also indicated the Veteran would begin physical therapy for his right shoulder 4 weeks after surgery, beginning with passive range of motion work for 4 weeks, then active assist range of motion work for 4 weeks, then active range of motion work for 4 weeks, followed by strengthening. An undated progress note from prior to the Veteran’s initial physical therapy ordered that he continue with the shoulder immobilizer for two more weeks, before beginning physical therapy in 2-3 weeks to begin working on range of motion. The private treatment notes indicate the Veteran began physical therapy in December 2016. Undated home exercise worksheets from the Veteran’s physical therapy call for repetitions with 1-, 2- and 3-pound weights. The Veteran’s VA treatment records reflect occupational therapy treatment for the right shoulder from February 2017 through August 2017. The progress notes from these visits indicate that the Veteran’s active range of motion was decreased by pain, and that he was not fully compliant with the home exercise program due to pain. The Veteran submitted an April 2017 progress note from his private orthopedic physician, which noted the Veteran was 32 weeks status post shoulder surgery. The Veteran reported continued stabbing pain in his shoulder and aching pain in his clavicle. The physician ordered continued physical therapy and recommended the Veteran continue home exercises and use over-the-counter anti-inflammatory pain medication for the pain, as well as rest, ice, compression, and elevation for treatment. A June 2017 treatment note reflects similar progress, and the physician administered a cortisone shot and ordered continued physical therapy. In October 2017, the physician recommended an MRI arthrogram of the right shoulder to determine why little to no progress was being made in the pain level and active range of motion of the Veteran’s right shoulder. The record is clear that the Veteran experienced pain and required continued physical therapy as well as medical treatment after the September 2016 right shoulder surgery. However, to merit an extension of the temporary total disability rating, the postoperative residuals must continue to be severe, such as incompletely healed surgical wounds, therapeutic immobilization of the shoulder, or the prohibition of regular weight-bearing. See 38 C.F.R. § 4.30. The record does not contain evidence that, once the Veteran began physical therapy in December 2016, his postoperative residuals continued to be so severe that his physician prohibited him from using his shoulder, as was the case immediately following the September 2016 surgery, when the surgeon prescribed an immobilizer for up to six weeks. Rather, the medical records indicate that the Veteran’s private orthopedic physician encouraged him to attend continued physical therapy and perform home exercises in an effort to increase the range of motion and increase the strength of the right shoulder. Further, the physical therapy records present in the record indicate the use of small weights as well as stretches, rather than immobilization or limitation of motion of the shoulder joint. Accordingly, as the record indicates the period of convalescence was limited to the period after the September 2016 surgery until he began physical therapy in December 2016, an extension of the temporary total disability rating for one month, and no more, is appropriate. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral ear disability, to include hearing loss and tinnitus, is remanded. The Veteran reported in his April 2017 notice of disagreement that he is prescribed antibiotics and eardrops to take on a daily basis for an ear condition that manifests in hearing loss and tinnitus. To date, the Veteran’s VA examinations have assessed only his hearing loss and tinnitus, and have not considered other ear disabilities. As the Veteran is not expected to have the medical knowledge to describe the universe of his claim precisely, a remand is necessary for an examination that assesses all possible ear disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The matter is REMANDED for the following action: Schedule the Veteran for an ear conditions examination with an appropriate clinician to determine whether any current ear condition manifesting in hearing loss and tinnitus is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all ear conditions currently found. The examiner should consider whether the Veteran’s symptoms coincide with a diagnosis of Meniere’s disease. For each ear condition identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s documented complaints of fullness and pain in the ears, dizziness, hearing loss, and tinnitus, as well as his private treatment records following him for otalgia and otitis media. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel