Citation Nr: 21002467 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-40 912A DATE: January 13, 2021 ORDER Entitlement to a temporary total disability (TTD) rating under 38 C.F.R. § 4.30 for convalescence following left shoulder surgery is denied. FINDINGS OF FACT 1. In June 2020 and July 2020 letters, the Veteran was asked to provide information necessary to adjudicate his claim for a TTD rating based on convalescence for a service-connected disability, to include submitting an updated VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs. No response has been received. 2. There is no evidence of record demonstrating that a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe-post operative residuals or the necessity of house confinement, continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, immobilization by cast, without surgery, of one major joint or more. CONCLUSION OF LAW The criteria for entitlement to a TTD rating for convalescence have not been met. 38 U.S.C. §§ 1155, 1156 (2018); 38 C.F.R. § 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from April 1989 to April 2009. This case comes before the Board of Veterans’ Appeals (Board) from December 2012 and January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of that hearing has been associated with the claims file. In March 2019 and May 2020, the Board remanded the appeal for additional evidentiary development. As discussed in greater detail below, the Agency of Original Jurisdiction (AOJ) attempted to complete the development directed in the March 2019 and May 2020 remands. However, despite requesting that the Veteran submit the necessary forms to complete such development actions, the Veteran has failed to do so. As such, the Board finds that the AOJ has complied with the directives of the prior remands in this case, and there is no bar to proceeding with a decision at this time. Entitlement to a TTD rating is denied. The Veteran asserts that entitlement to a TTD rating is warranted for a period of convalescence following his left shoulder surgery he underwent in February 2011. TTD ratings are assigned under 38 C.F.R. § 4.30 if treatment of a 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 of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity of house confinement, 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) (2019). At the outset, the Board notes that the Veteran is service-connected for bicipital tendonitis, rotator cuff tendonitis, and rotator cuff tear of the left shoulder. Thus, surgery and convalescence involving the left shoulder is eligible for a TTD rating. The Veteran testified that he underwent surgery at a private facility, wore an arm brace for about six weeks, and was cleared from physical therapy four months later. See, e.g., August 2018 Board Hearing Transcript. Of record are October 2011 and August 2018 letters from the Veteran’s surgeon, Dr. P.K. In those letters, Dr. P.K. indicated that the Veteran underwent left shoulder surgery on February 4, 2011, with labral repair and lysis of adhesions. Dr. P.K. stated that due to this surgery, the Veteran would be on convalescence leave for a period of at a minimum of two weeks, and up to eight weeks. Dr. P.K. also stated he believed eight weeks of convalescence was reasonable due to the type of shoulder surgery performed. Dr. P.K. noted the Veteran was released from care on June 3, 2011. A review of the record shows that at 17 days following his left shoulder surgery, the Veteran presented to physical therapy with a sling or abduction pillow immobilizer in place. In its March 2019 and May 2020 remands, the Board noted that the evidence of record was inadequate to decide the claim, and instructed the AOJ to request authorization from the Veteran to obtain outstanding private treatment records documenting his surgery and any subsequent period of convalescence. In June 2020, the AOJ requested the Veteran to “provide the dates of the period of time that you were on convalescence leave, to include the period of time that you wore a cast, following your February 2011 left shoulder surgery.” Later in June 2020, the Veteran submitted a VA Form 21-4138 (Statement in Support of Claim), stating that he wore a shoulder sling/brace after his rotator cuff with bicep tear surgery for six weeks and spent four months in physical therapy. In July 2020, the AOJ requested the Veteran to complete and return VA Form 21-4142, Authorization to Disclose Information to the VA, and VA Form 21-4142a, General Release for Medical Provider Information to the VA, the forms needed to request his medical records. To date, the Veteran has not returned the completed forms to the VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (noting that the duty to assist is not a one-way street). Consequently, the available medical evidence does not show that the Veteran’s surgery necessitated at least one month of convalescence; that he had severe post-operative 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 of house confinement, continued use of a wheelchair or crutches. The Board acknowledges the Veteran’s assertion that his surgery necessitated at least one month of convalescence. However, the letters from Dr. P.K. do not indicate how long the Veteran actually had a period of convalescence, if any. Rather, Dr. P.K. merely states that a maximum eight weeks was reasonable, but that the Veteran could return to work after 14 days. Moreover, it was not indicated how long the Veteran wore the sling or abduction pillow immobilizer, and if that is a brace as considered for TTD purposes. As there is no medical evidence of record confirming a period of convalescence under 38 C.F.R. § 4.30 (a), a TTD rating cannot be assigned. The claim is denied. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.