Citation Nr: 21068738 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-42 423 DATE: November 12, 2021 ORDER A temporary total rating under 38 C.F.R. § 4.30 based on a need for convalescence following the Veteran's May 2015 left shoulder surgery is granted. FINDING OF FACT The Veteran's left shoulder disability required surgery necessitating at least one month of convalescence. CONCLUSION OF LAW The criteria for a temporary total evaluation due to surgery of left shoulder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to June 1993. In December 2019, the Board granted entitlement to service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure. Also, in December 2019, the RO remanded the issues of entitlement to an increased rating for a right shoulder disability, as well as entitlement to a temporary total disability evaluation for convalescence for surgical treatment of left rotator cuff tendonitis and left glenohumeral joint osteoarthritis. In May 2021, the Board granted a 30 percent disability evaluation (excluding a temporary total rating period) for the Veteran's right shoulder disability. In a June 2021 rating decision, the RO implemented the 30 percent grant, effective December 31, 2014 and an evaluation of 30 percent was also assigned from October 1, 2018, the first day of the month following the six-month period of convalescence. The RO further noted that the decision represented a Board grant that was considered to be a full and final determination of the issue on appeal. Thus, this issue is no longer before the Board. Also, in May 2021, the Board remanded the matter for further development. Specifically, the Board remanded the claim to obtain any relevant VA and/or private medical treatment records and to obtain a VA medical opinion specifying the period of convalescence required, if any, following the Veteran's May 2015 left shoulder surgery. In July 2021, VA sent the Veteran VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information. However, neither form was returned. Additional VA treatment records were also associated with the claims file in June 2021 and July 2021. Further, an addendum medical opinion was obtained in September 2021. The Board finds that the opinion is adequate, and further remand is not required. A temporary total rating under 38 C.F.R. § 4.30 based on a need for convalescence following the Veteran's May 2015 left shoulder surgery The Veteran asserts that he is entitled to six weeks of a temporary total rating (100 percent) for his service-connected left shoulder disability following surgery performed in May 2015. 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). The U.S. Court of Appeals for Veterans Claims has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury" and recovery as "the act of regaining or returning toward a normal or healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary 374 (28th ed. 1994) and Webster's Medical Desk Dictionary 606 (1986)). The record reflects that on May 27, 2015, the Veteran underwent arthroscopic debridement with partial labral excision, left shoulder; arthroscopic acromioplasty, left; and arthroscopic distal clavicle excision surgery, left. Following the surgery, the Veteran was taken to a recovery room and was noted to be in stable condition. In a June 9, 2015 follow-up note, the Veteran reported that his left shoulder was feeling progressively better and there were no specific complaints. An examination revealed that the Veteran's left shoulder presented with no swelling or gross deformity. He had full active range of motion of the shoulder and his surgical incisions were noted to "have healed nicely." Additionally, the examining clinician noted that the Veteran's neurovascular exam was "intact in the left upper extremity." Impressions revealed "status post left shoulder subacromial decompression and distal clavicle excision, healing." The clinician further noted that the Veteran had some patchy areas of grade IV chondromalacia of the glenohumeral joint. The plan included a gradual increase in activity as tolerated. In a June 22, 2015 VA treatment record, the Veteran stated that his left shoulder surgery was complete and close to complete recovery. In an October 2015 treatment note, the Veteran presented for complaints relating to his right shoulder. At such time, the Veteran reported that his "left shoulder is doing great." In a November 2015 Shoulder and Arm Conditions DBQ, the Veteran reported that after experiencing pain in his right shoulder, he stopped working and tried to get in shape working out when his left shoulder subsequently got worse. The Veteran also noted that he then received injections and rehab, but eventually had surgical decompression. The Veteran further stated that he had decreased motion and decreased strength due to pain. The Veteran's ADLs were deemed normal, and he was working on a full-time basis. The Veteran also noted that he had flare-ups, to include decreased motion with no overhead movements due to pain, bilaterally. Residuals of his 2015 arthroscopic surgery were noted to be "limited motion due to pain." As to functional impact relating to both shoulders, the examiner noted that "all lifting and labor would be expected to be problematic." In a January 2020 Statement in Support of Claim, the Veteran (via his representative) stated that he was unable to work for "six months" due to his left shoulder not healing properly after surgery. In a September 2021 medical opinion DBQ, a VA physician (T.D., General Practice, Obstetrics and Gynecology) stated that while there was no specific documentation of the Veteran's convalescence period from surgery, the standard would be limited use of that shoulder for two weeks with simple range of motion exercises. The examiner also noted that six weeks would be considered the normal post-operative timeframe, with normalization of activities progressing from weeks two to six. The examiner also reported that it was more likely than not that physical therapy would have been recommended or allowed as early as two weeks, or earlier. And, therefore, there was limited convalescence, none of which precludes normal daily function or ambulation. In an October 2021 Statement in Support of Claim, the Veteran (via his representative) noted that while the VA examiner who performed the September 2021 examination practiced General Medicine, he was not an orthopedist. The Veteran further stated that following the May 2015 surgery, he was unable to work until after the six-week recovery and recovered for six weeks at a minimum. He specifically noted that he owns his company and was unable to perform some of the physical jobs that were required to support his employees. Further, the Veteran reported that he missed work due to weekly physical therapy sessions that continued for several weeks and specified that "nowhere in the 38 USCS and CRF does the convalescence say Physical Therapy is not included in the convalescences, but is it is with all other surgeries." In evaluating the medical and lay evidence, the Board finds that the Veteran required at least one month of convalescence following his May 2015 left shoulder surgery. In this regard, at the Veteran's June 9, 2015 follow-up appointment, the provider noted that the Veteran's symptoms were not resolved. Also, at the June 22, 2015 appointment, the Veteran stated that his recovery, although close, was incomplete. Further, the Veteran has competently and credibly stated that he attended weekly physical therapy sessions for his left shoulder and, consequently, was unable to perform the physical aspects that his job required for at least six weeks. The Board also recognizes that although the September 2021 examiner denied that the Veteran required a period of convalescence, as part of the opinion, the examiner also reported that "six weeks would be considered the normal post-operative timeframe." Thus, based on the foregoing, and after resolving all doubt in his favor, the Board finds that the Veteran's left shoulder surgery required at least one month of convalescence, qualifying him for a temporary total rating. 38 C.F.R. § 4.30(a)(1). 38 C.F.R. § 4.3. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.