Citation Nr: 21011513 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-18 855A DATE: March 2, 2021 ORDER Entitlement to an extension of the temporary total evaluation for convalescence after right shoulder surgery beyond May 31, 2008, is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether an extension of the temporary total evaluation for surgical convalescence of the right shoulder may be assigned. CONCLUSION OF LAW The criteria for entitlement to an extension of the temporary total evaluation for convalescence after right shoulder surgery beyond May 31, 2008, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the United States Army from November 1984 to May 1985, and on active duty from March 1987 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the Board during a hearing in September 2014. The Veterans Law Judge who presided over that hearing is no longer employed by the Board. In January 2021, the Board sent the Veteran a letter explaining that he had the right to request another hearing, if desired, and asked him to respond to the letter within 30 days. To date, no response has been received. Therefore, the Board finds that the Veteran has waived his right to an additional hearing. This matter has an extensive procedural history dating back to 2006. Most recently, in November 2019, the Board remanded the matter to allow the Veterans Service Center Manager (VSCM) to make an initial decision on whether an extension of the temporary total evaluation beyond 6 months would be appropriate. The record reflects that the agency of original jurisdiction (AOJ) obtained a decision from the VSCM, who concluded that the evidence of record did not support an extension beyond the six-month period following right shoulder surgery in November 2007. Accordingly, the AOJ has substantially complied with the prior remand directives and the matter is ready for a decision on the merits. Legal Criteria – Temporary Convalescence Evaluations Pursuant to 38 C.F.R. § 4.30, a total disability rating 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). A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section (2) extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b). Convalescence is defined as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland’s Illustrated Medical Dictionary, 374 (28th ed. 1994)). Recovery has been defined as “the act of regaining or returning toward a normal or healthy state.” Id. (citing Webster’s Medical Desk Dictionary, 606 (1986)). Entitlement to an extension of the temporary total evaluation after right shoulder surgery beyond May 31, 2008 The Board finds that the most probative evidence does not reach the level of equipoise as to whether an extension of the temporary total evaluation after right shoulder surgery may be assigned beyond May 31, 2008. Therefore, the appeal may not be granted. Initially, the Veteran has been granted a temporary total evaluation for his service-connected right shoulder disorder from November 26, 2007, the date of his surgical procedure, through May 31, 2008. On June 1, 2008, the first day of the sixth calendar month following his surgical procedure, a 30 percent rating was assigned. See 38 C.F.R. § 4.30(b); Rating Decision – Codesheet, April 2017. Thus, as the Veteran has already exceeded the maximum extension for surgery necessitating convalescence under 38 C.F.R. § 4.30(a)(1) and did not have a joint immobilized by cast, the question for the Board is whether the record supports an extension of the temporary convalescent period beyond May 31, 2008, based on surgery with severe postoperative residuals. 38 C.F.R. § 4.30(b)(2). Private medical records show that the Veteran sought treatment for his right shoulder disorder in early November 2007. The Veteran agreed to have surgery later that month. The physician, Dr. R.L., noted that “he understands that he will be required to perform 8 weeks of passive range of motion after repair and will require a total of 5 months of therapy or exercises by himself to optimize his result before we can return him to full overhead or manual use. He understands all this and wishes to proceed.” On November 26, 2007, the Veteran underwent surgery to repair a right supraspinatus rotator cuff tear. The procedure was completed successfully without complications. Dr. R.L. explained that the Veteran should remain in the sling for 10-14 days, and then begin supine passive forward elevation and external rotation exercises either by himself or with a physical therapist. He stated that the Veteran should be strictly passive range of motion for the first 8 weeks following surgery, meaning no reaching with the right arm away from his body. Dr. R.L. found that active range of motion could begin after 8 weeks, and a strengthening program could begin after 12 weeks. In early December 2007, a clinician noted that the Veteran was “without complaints”, the incision poke holes were healing well, and there was no erythema or drainage upon suture removal or any wound dehiscence. He stated that the Veteran will begin passive range of motion of the shoulder, and forward elevation and external rotation with his elbow at his side. He scheduled the Veteran to follow up with Dr. R.L. in four weeks. The Veteran appeared for a follow-up appointment in early January 2008. He stated that he had not started formal physical therapy, but had been performing exercises on his own and admitted to actively reaching with his right shoulder. A physical examination showed passive forward elevation of 175 degrees, external rotation of 30 degrees, neurovascularly intact throughout, no pain or crepitation with passive internal or external rotation, and well-healed portal incisions. Dr. R.L. assessed that the Veteran was “doing well” and planned for the Veteran to continue only passive range of motion for another two weeks. He noted that the “new prescription for the therapist states passive range of motion until 8 weeks postoperatively, then active, assisted range of motion, start strengthening at 12 weeks postoperatively.” Dr. R.L. scheduled a follow-up in 6 weeks. The Veteran submitted a “certificate for school/work absence” signed by Dr. R.L. in April 2008. Dr. R.L. endorsed that the Veteran was under his care from October 2007 to the present. However, he did not describe the nature of any treatment at that time or otherwise indicate the current status of the Veteran’s shoulder disorder. In July 2008, the Veteran visited his VA primary care physician. He complained of having shoulder pain, but stated that the surgery had helped to a degree. The physician noted that the Veteran would be seen again for a follow-up in about six months. In October 2008, the Veteran presented to the emergency department complaining of worsening right shoulder pain over the past month with no new injury. The clinician noted that the Veteran had surgery in 2007 with marked improvement, but was never completely clear of the right shoulder pain. Physical examination revealed tenderness, abduction to 85 degrees, flexion to 80 degrees, and inability to reach behind the back. The clinician placed a request for an orthopedic consultation and prescribed medicine. The Veteran presented for a VA orthopedic consultation in December 2008. He described having dull aches in the anterior aspect of the right shoulder of 3/10 severity. He denied difficulty putting on a coat or managing toiletry, but reported difficulties with activities such as combing his hair, reaching a high shelf, and lifting ten pounds above his head. He described as very difficult washing his back or sleeping on his side. The examiner noted that the right upper extremity was shortened compared to the contralateral limb. There was an obvious deformity in the mid-shaft of the clavicle with abundant heterotopic ossification. In January 2009, the Veteran attended a follow-up orthopedic consultation. The clinician noted a history of a massive retracted tear of the supraspinatus tendon following an attempted arthroscopic repair. It was noted that a computed tomography (CT) scan demonstrated calcification of the coracoclavicular ligaments while a magnetic resonance imaging (MRI) scan demonstrated massive retracted tear of the supraspinatus tendon at the glenoid level with significant muscle wasting and muscular atrophy. The Veteran testified before the Board in September 2014. He stated, among other things, that the hospital had only given him ten days to heal before immediately starting rehabilitation, and that VA told him that he could not do rehabilitation at the private hospital. He stated that he went to the VA for rehabilitation for a few months, and sometime during the course of that therapy had magnetic resonance imaging which showed that the surgery “did not take.” He testified that he was told that his convalescent period from the surgery would be about one year, and that his right shoulder now feels worse than it did before the surgery. The Veteran underwent a VA examination in January 2015. The examiner diagnosed a right rotator cuff tear, acromioclavicular joint osteoarthritis, and malunion of the clavicle. He reviewed the claims file and provided the following opinion: “The veteran’s recovery from his rotator cuff repair should usually last around 3 months. In a normal patient, they are free to return to activities at around 3 months’ time. However, this patient’s rotator cuff repair failed post operatively, making a full recovery impossible. The veteran’s current [range of motion] is likely to be chronic, and was present 3 months after his index rotator cuff repair.” After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether a temporary total evaluation may be extended beyond May 31, 2008. In reaching this conclusion, the Board has considered the medical evidence. Dr. R.L. noted in November 2007 that the anticipated recovery time would require 5 months of therapy or exercises. He observed that the Veteran was healing well in January 2008, despite his actively reaching with the right shoulder earlier than recommended. Moreover, the Veteran reported that his surgery had helped to a degree in July 2008, and only endorsed worsening shoulder pain “over the past month” in October 2008. Given that the Veteran reported improvement in his right shoulder disorder up until around September 2008, the evidence does not suggest to the Board that there were “severe post-operative residuals” to the extent that a temporary total evaluation may be extended beyond May 31, 2008. 38 C.F.R. § 4.30. The January 2015 VA examiner opined that the Veteran’s rotator cuff repair failed post operatively, making a full recovery impossible, and that the Veteran exhibited limited range of motion 3 months after the surgery. However, the fact that the shoulder repair may have failed at some point does not mean that the original surgery resulted in “severe postoperative residuals” to the extent contemplated by relevant regulations. See 38 C.F.R. § 4.30(a) (stating that “severe postoperative residuals” include “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”). The Board finds that there is no indication in the record that the original surgery was performed incorrectly or resulted in severe postoperative residuals as contemplated by applicable regulatory standards. The Board acknowledges that the Veteran continued to experience functional impairment in his right shoulder after surgery, including limited range of motion three months after the surgery. However, the Board notes that Dr. R.L. anticipated a recovery time of around 5 months, and the Veteran was previously granted a total rating for a six-month convalescent period. Moreover, his disability rating contemplates lingering functional impairment, including limited range of motion, associated with a right shoulder disorder. 38 C.F.R. §§ 4.2, 4.71a, Diagnostic Code 5201. In sum, the most probative evidence does not reach the level of equipoise as to whether a temporary total evaluation may be extended beyond May 31, 2008. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.