Citation Nr: 21003356 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-22 675 DATE: January 21, 2021 ORDER For the period from June 28, 2017, to September 1, 2017, a temporary total rating based on the need for convalescence following a June 2017 left shoulder surgery is granted. Entitlement to special monthly compensation (SMC) at the housebound rate is granted from June 28, 2017 to September 1, 2017. FINDINGS OF FACT 1. The Veteran underwent surgery for his left shoulder disability on June 28, 2017, after which he required a period of convalescence of eight weeks. 2. From June 28, 2017 to September 1, 2017, the Veteran had a single service-connected disability rated as total (left shoulder temporary total) and an additional service-connected disability ratable at 60 percent (left lower extremity above the knee amputation). CONCLUSIONS OF LAW 1. For the period from June 28, 2017, to September 1, 2017, the criteria for a temporary total rating based on the need for convalescence are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 2. For the period from June 28, 2017, to September 1, 2017, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1963 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902. 1. For the period from June 28, 2017, to September 1, 2017, a temporary total rating based on the need for convalescence following a June 2017 left shoulder surgery, is granted. The Veteran asserts that he is entitled to 8 weeks of a temporary total rating (100 percent) for his service-connected left shoulder disability that required the removal of hardware on June 28, 2017. See May 2018 VA Form 21-526EZ, June 2017 private treatment records, July 2018 statement from Dr. T.S., and December 2020 Board Hearing Transcript at 4. The Board agrees. 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, 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 such 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). Here, while on active duty, the Veteran fractured his left shoulder, which required stabilization with hardware. See STRs. In June 2017, a CT scan revealed a screw within the soft-tissue medial to the proximal left humerus and abutting the left axillary artery causing the Veteran chronic left shoulder pain. See June 2017 private treatment records. On June 28, 2017, the Veteran underwent a removal of this foreign body. Id. At his December 2020 Board Hearing, the Veteran testified his left shoulder surgery required a long recovery time due to the extreme difficulty he experienced with the activities of daily living caused by his inability to use his left shoulder without pain. See Board Hearing Transcript at 2-3. Specifically, the Veteran noted his service-connected left lower extremity above the knee amputation prevented stable ambulation without assistive devices and assistive devices, such as crutches, which required the use of his shoulders. Id. The Veteran also testified that although his recovery took much longer than 8 weeks, he would consider his appeal satisfied with an 8-week temporary total rating. In this regard, the Veteran’s surgeon provided a written statement that the Veteran’s recovery time in 2017 after the surgery was eight weeks. See July 2018 letter from Dr. T.S. Based on the foregoing, and after resolving all doubt in his favor, the Board finds that the Veteran’s left shoulder surgery required 8 weeks of convalescence from June 28, 2017 to September 1, 2017, qualifying him for a temporary total rating. 38 C.F.R. § 4.30(a)(1). 38 C.F.R. § 4.3. 2. Entitlement to SMC at the housebound rate is granted from June 28, 2017 to September 1, 2017 is granted. VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). The Veteran is currently in receipt of a temporary total rating from June 28, 2017 to September 1, 2017, based solely on his left shoulder disability and has an additional service-connected disability independently ratable at 60 percent (above the knee left lower extremity amputation). See 38 C.F.R. § 4.30(a)(1). Thus, SMC at the housebound rate is warranted from June 28, 2017 to September 1, 2017. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate 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.