Citation Nr: 21006863 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-50 910 DATE: February 5, 2021 ORDER Entitlement to a temporary total evaluation from December 4, 2013, to January 31, 2014, based on surgical or other treatment necessitating convalescence for service-connected right shoulder condition is granted. Entitlement to a temporary total evaluation between February 1, 2014, to January 12, 2015, based on surgical or other treatment necessitating convalescence for service-connected right shoulder condition is denied. FINDINGS OF FACT 1. The Veteran underwent a right shoulder hemiarthroplasty (partial replacement) on December 4, 2013. 2. The Veteran’s December 4, 2013, partial right shoulder replacement did not require an extended period of convalescence between February 1, 2014, and January 12, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to a temporary total evaluation from December 4, 2013, to January 31, 2014, based on surgical or other treatment necessitating convalescence for service-connected right shoulder condition have been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.31, 3.400 2. The criteria for entitlement to a temporary total evaluation between February 1, 2014, to January 12, 2015, based on surgical or other treatment necessitating convalescence for service-connected right shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from January 1987 to December 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a temporary total evaluation between February 1, 2014, to January 12, 2015, based on surgical or other treatment necessitating convalescence for service-connected right shoulder condition is denied. The Veteran was granted a temporary total evaluation effective from December 20, 2013, to January 31, 2014, based on surgical or other treatment necessitating convalescence for her service-connected right shoulder condition. The Veteran contends she is entitled to a temporary total evaluation under Diagnostic Code (DC) 5051 for the one year following the replacement of her right shoulder. Under DC 5051, a 100 percent rating is assigned for one year following implantation of prosthesis of the shoulder joint, for either the major or the minor upper extremity. 38 C.F.R. § 4.71a, DC 5051. Essentially, a total evaluation under DC 5051 requires a total shoulder replacement. In the Veteran’s VA treatment records, it is noted that she received a hemiarthroplasty on December 4, 2013. Also, in the July 2020 Board hearing, the Veteran conceded that she received a partial right shoulder replacement. Therefore, she is not entitled to a temporary total evaluation from February 1, 2014, to January 12, 2015, under DC 5051. However, the Board will consider whether she is eligible for a temporary total evaluation from February 1, 2014, to January 12, 2015, under 38 C.F.R. § 4.30. A temporary total evaluation of 100 percent will be assigned from the date of hospital admission and continue for a period of one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative rituals, 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 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 one, two, or three months of a temporary total evaluation may be granted based on the factors enumerated above. 38 C.F.R. § 4.30 (b)(1). Extensions of one to six months beyond the initial six-month temporary total evaluation may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b)(2). “Convalescence” is defined as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining “recovery” as “the act of regaining or returning toward a normal or healthy state”). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. Notations in the medical record as to the claimant’s incapacity to work after surgery must be taken into account in the evaluation. Id; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In the July 2020 Board hearing, the Veteran testified that the December 4, 2013 partial right shoulder replacement caused her not to be able to eat with her right hand, she could not sleep on her back, and she could not perform her basic needs. In the January 2014 VA treatment, it was noted that the Veteran complained about pain in her right shoulder which only allowed her to lift 5-pound items. As a result, the treating physician issued a light duty assignment and noted that she was okay to resume work at any time with no lifting greater than 5-pounds. In the August 2014 VA treatment record, it was noted that the Veteran has continued pain due to her partial right shoulder replacement. In the January 2015 VA treatment record, it was noted that she has right shoulder instability and pain. Also, it was noted that she has a well-healed deltopectoral incision on her right shoulder. Upon review of the record, the Board finds that the Veteran did not require an extended period of convalescence between February 1, 2014, and January 12, 2015. Although, the Veteran continued to have pain following her partial right shoulder replacement, there is no evidence that she had severe post-operative residuals beyond the already established period of convalescence as required under the provisions of 38 C.F.R. § 4.30. Additionally, the Veteran’s right shoulder pain is directly compensation under DC 5051 where she has a 20 percent disability rating effective February 1, 2014, to January 12, 2013. Therefore, the preponderance of the evidence is against a finding that the Veteran’s partial right shoulder replacement required an extended period of convalescence between February 1, 2014, to January 12, 2015. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Additionally, in the July 2020 Board hearing, the Veteran testified about how she believed her shoulder symptoms were a result of surgery conducted at VA. In a February 2015 rating decision, the RO explained that compensation for her right shoulder disability was being granted under the provisions of 38 U.S.C. § 1151 because it was as least as likely as not that the shoulder disability was due to lack of skill by the surgical team who performed the partial right shoulder replacement. Also, in the July 2020 Board hearing, she requested an effective date prior to December 20, 2013 because she had a shoulder disability prior to that date. The temporary total evaluation was assigned in response to her December 20, 2013 informal claim for benefits for a right shoulder disability under 38 C.F.R. § 1151. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Compensation based upon disability caused by VA medical treatment pursuant to 38 U.S.C. § 1151, the effective date will be the date the injury or aggravation was suffered if the claim is received within one year of that date, otherwise the effective date will be the date of the receipt of the claim for such benefits. 38 U.S.C. § 5110 (c); 38 C.F.R. § 3.400 (i)(1). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. Here, the Veteran’s partial right shoulder replacement was performed on December 4, 2013. As noted above, she filed her informal claim for a right shoulder disability under 38 C.F.R. § 1151 on December 20, 2013. This claim was filed within one year of her partial right shoulder replacement. Thus, the Veteran is entitled to a December 4, 2013 effective date for the grant of a right shoulder disability under U.S.C. § 1151. (Continued on the next page)   Therefore, the Veteran is entitled to temporary total evaluation effective from December 4, 2013, to January 31, 2014, based on surgical or other treatment necessitating convalescence for her service-connected right shoulder condition. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.