Citation Nr: 22005648 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 16-44 687 DATE: February 2, 2022 ORDER Entitlement to an extension of the temporary total rating for convalescence beyond January 1, 2014 as a result of surgery to service-connected right shoulder is denied. FINDING OF FACT The Veteran's July 26, 2013 right shoulder surgery did not require a period of convalescence in excess of five months. CONCLUSION OF LAW The criteria for entitlement to an extension of the temporary total rating for convalescence following surgery for a service-connected right shoulder disability have not 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 February 1973 through May 1976 and May 1967 through September 1978. The Veteran died in February 2021. The appellant is the Veteran's surviving spouse and the RO granted substitution for her to carry out her husband's pending appeal. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Prior to the Veteran's death, he requested a hearing. Unfortunately, a hearing was not held prior to the Veteran's death. After the appellant was substituted, the Board sent correspondence to the appellant asking whether a hearing was still desired. The appellant did not respond to this inquiry. Thus, the Board will adjudicate the claim based on the existing record. Entitlement to an extension of the temporary total rating for convalescence beyond January 1, 2014 as a result of surgery to service-connected right shoulder is denied. The appellant contends that the Veteran is entitled to an extension of his temporary total rating for convalescence following his July 26, 2013 right shoulder surgery. A temporary total rating was previously granted by the RO in a November 2014 rating decision. The temporary total rating was effective July 26, 2013 (date of admission) until September 30, 2013. In a May 2015 rating decision, the RO extended the Veteran's total temporary rating period an additional three months through January 1, 2014. The Veteran contends that the temporary total rating should have been granted for a period of approximately six months. A total (100 percent) 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 under paragraph (a)(1), (2), or (3) or 38 C.F.R. § 4.30 effective 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. See 38 C.F.R. § 4.30. Total ratings will be assigned under this section if treatment of a 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, application of a body case, 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. The total rating will be followed by a rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. See 38 C.F.R. § 4.30 (a). A total rating under section (1), (2), or (3) as mentioned above may be extended for intervals of 30, 60, or 90 days. See 38 C.F.R. § 4.30 (b)(1). A total rating under section (2) or (3) may be extended for up to 6 months beyond the initial 6-month period. See 38 C.F.R. § 4.30 (b)(2). Here, a review of the record does not indicate that the Veteran required a period of convalescence beyond January 1, 2014. Physical therapy notes show treatment for the Veteran's right shoulder from January 26, 2013 through December 2013. A December 17, 2013 treatment note recorded that the Veteran had completed his physical rehabilitation program for his right shoulder four days prior. A January 14, 2014 treatment note documented that that the Veteran was functional in his activities of daily living and did not require additional physical therapy. He was able to use his right shoulder on a regular basis with little or no discomfort. In March 2014, the Veteran submitted to a VA examination for his right shoulder. He had right shoulder flexion to 90 degrees and abduction to 90 degrees. Pain was noted on examination at end-stage range. The examiner estimated that his range of motion was likely affected by suboptimal effort. He had no ankylosis or instability. His right shoulder did not affect his ability to work and only caused mild functional limitations. While the Veteran continued to have pain following his July 2013 right shoulder procedure, there is no evidence that he had severe postoperative residuals as contemplated by 38 C.F.R. § 4.30 (a)(2), after January 1, 2014. Rather, as of January 1, 2014, treatment notes support that the Veteran was functional in activities of daily living and did not require additional physical therapy. Furthermore, there is no evidence that the Veteran was immobilized vis-à-vis a cast on his service-connected right shoulder, as contemplated by 38 C.F.R. § 4.30 (a)(3), rendering that provision inapplicable. In summary, while the Veteran was convalescing for a period of time beyond July 26, 2013, the evidence of record summarized above makes clear that his period of convalescence ended as of January 1, 2014. Thus, the preponderance of the evidence is against a finding that the Veteran's July 2013 right shoulder surgery required an extension of the temporary total evaluation for convalescence beyond January 1, 2014. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.