Citation Nr: 21074243 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-32 457 DATE: December 14, 2021 ORDER Entitlement to an extension of temporary evaluation of 100 percent for right shoulder surgery beyond July 1, 2015 is denied. REMANDED Entitlement to a rating in excess of 60 percent for right shoulder replacement is remanded. FINDING OF FACT Entitlement to an extension of temporary evaluation of 100 percent for right shoulder surgery beyond July 1, 2015. CONCLUSION OF LAW The criteria for an extension of a total disability rating based on convalescence for right shoulder surgery beyond July 1, 2015 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to July 1991. In August 2021, the Veteran testified during a virtual hearing before the undersigned and a transcript of that hearing is of record. Entitlement to an extension of temporary evaluation of 100 percent for right shoulder surgery beyond July 1, 2015 The Veteran contends that a temporary total evaluation for his right shoulder disability should be extended beyond July 1, 2015. Specifically, the Veteran testified at his August 2021 hearing that his right shoulder continued to give him problems after the May 2014 partial total replacement surgery. Based upon a review of the record, the Board finds that an extension beyond July 1, 2015 of the temporary total disability rating is not warranted as a matter of law. Under Diagnostic Code (DC) 5051, a 100 percent rating is assigned for one year following implantation of prosthesis, for either the major or the minor upper extremity. After surgery, Diagnostic Code 5051 provides that with chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 60 percent disability rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5200 and 5203. Under this code, 30 percent is the minimum assigned rating, as the Veteran is right hand dominant. 38 C.F.R. § 4.71a, Diagnostic Code 5051. According to an operative report from Valley Baptist Medical Center, on May 13, 2014 the Veteran underwent a right shoulder hemiarthroplasty or partial shoulder replacement. Based on that surgery, and according to DC 5051, the Veteran was assigned a temporary 100 percent evaluation from May 13, 2014 to July 1, 2015. This included a one month total rating under 38 C.F.R. § 4.30 following discharge from the hospital and an additional one year following implantation of prosthesis under DC 5051. Initially, the Veteran was assigned a 30 percent disability rating after the temporary 100 percent rating ended but that was increased to 60 percent effective July 1, 2015 based on post-prosthetic replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Board notes the Veteran's complaints that his right shoulder disability was not improved after the May 2014 partial total replacement however a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic following surgery. The appropriate schedular rating is intended to cover this situation and as previously noted, the Veteran is in receipt of the schedular evaluation of 60 percent under the applicable DC 5051. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for an extension beyond July 1, 2015 of his temporary total disability rating. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to a rating in excess of 60 percent for right shoulder replacement is remanded. The Veteran contends that he is entitled to a rating higher than 60 percent for his right shoulder disability. The evidence of record shows that the Veteran is right hand dominant; thus, his right shoulder is his major shoulder for rating purposes. His right shoulder disability has been rated as 60 percent disabling under Diagnostic Code 5051 since July 1, 2015. During his August 2021 virtual hearing, the Veteran testified that he had additional right shoulder procedures after July 1, 2015 as his disability continued to worsen. Associated treatment records show that the Veteran underwent a total right shoulder replacement on April 7, 2017 and was discharged on April 9, 2017. following which a temporary evaluation of 100 percent was assigned from April 7, 2017 to June 1, 2018 with a 60 percent rating thereafter. Further review of the record shows that on June 1, 2018, the Veteran underwent a revision right shoulder total arthroscopy with lysis and resection of adhesions with manipulation due to a failed right shoulder hemiarthroplasty at University Hospital in San Antonio, TX. Unfortunately, other than the operation report from University Hospital and a June 1, 2018 statement from Dr. A. D., no other treatment records relevant to the claim have been associated with the claims file since the surgery. Therefore, the Board finds a remand is necessary to obtain VA and private treatment records. Additionally, the June 1, 2018 statement from Dr. A.D. states the Veteran needed a full year from the June 1, 2018 surgical procedure to rehab and recuperate. It does not appear that the issue of whether a temporary total evaluation from June 1, 2018 is warranted has been adjudicated by the Agency of Original Jurisdiction. Accordingly, the issue is referred back to the AOJ. The matters are REMANDED for the following action: 1. Obtain and associate any VA treatment records not already associated with the claims file. 2. Contact the Veteran and request that he identify all private providers who have treated him for his right shoulder disability. After obtaining authorization, obtain all outstanding records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, complete any other development necessary to adjudicate the claim for an increased rating for right shoulder replacement. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.