Citation Nr: 22031270 Decision Date: 05/26/22 Archive Date: 05/26/22 DOCKET NO. 17-60 313 DATE: May 26, 2022 ORDER Entitlement to a temporary 100 percent rating based upon a right shoulder surgery in April 2016 with severe postoperative residuals for the period from April 27, 2016 to June 6, 2016 is granted. REMANDED Entitlement to an initial rating in excess of 20 percent prior to October 16, 2019, and a rating in excess of 30 percent thereafter for the Veteran's service-connected right shoulder disability is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from January 1984 to May 1984 and in the United States Navy from December 1986 to December 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this matter for additional development. While on remand, in a November 2019 rating decision, the RO granted a 30 percent disability rating for the right shoulder effective October 16, 2019. In February 2020, the Board awarded an initial disability rating of 20 percent for the Veteran's right shoulder disability. As part of the February 2020 decision, the Board noted that during the pendency of the claim, the Veteran had surgery on his right shoulder in April 2016. However, entitlement to a temporary total disability (TTD) rating was not considered. The Board remanded the case for further development as to the issues of entitlement to a TTD following the Veteran's April 2016 surgery, entitlement to an initial rating in excess of 20 percent prior to October 16, 2019, and entitlement to a rating in excess of 30 percent thereafter. This case has since been returned for further appellate review. FINDING OF FACT The Veteran underwent a right shoulder arthroscopy on April 27, 2016 which resulted in therapeutic immobilization of his right shoulder through June 6, 2016. CONCLUSION OF LAW The criteria for entitlement to a temporary total rating based on severe postoperative residuals for status-post right shoulder surgery from April 27, 2016 to June 6, 2016 have been met. 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria A total rating will be granted following hospital discharge, 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 if the hospital treatment of the 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 or 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. Following the temporary total disability rating, the disability will be rated by the appropriate schedular evaluation. 38 C.F.R. § 4.30. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation. A total rating may be extended as follows: (1) extensions of 1, 2, or 3 months may be made beyond the initial 3 months under all three provisions identified above; and (2) extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under only the "surgery with severe postoperative residuals" and "immobilization by cast" provisions. See 38 C.F.R. § 4.30(b). The Court has held that convalescence is "the stage of recovery following an attack of disease, a surgical operation, or an injury" and recovery is "the act of regaining or returning toward a normal or healthy state." See Felden v. West, 11 Vet. App. 427, 430 (1998). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Factual Background and Analysis By way of background, the Veteran has been service connected for his right shoulder disability since April 2010. As noted above, the Veteran had surgery on his right shoulder in April 2016. The Board finds the Veteran is entitled to a total temporary disability rating from April 27, 2016 to June 6, 2016. The evidence reflects that he underwent right shoulder arthroplasty on April 27, 2016. A post-operative medical record instructed the Veteran to wear a right shoulder sling at all times until his surgeon told him to discontinue use of the sling. At a follow-up appointment on May 13, 2016, the Veteran was instructed to continue wearing the sling for an additional three weeks. The Board finds the Veteran was required to wear a right shoulder sling from April 27, 2016 to June 6, 2016. As such, the Board finds the Veteran is entitled to a total temporary disability rating of 100 percent based on therapeutic immobilization of his right shoulder post-surgery from April 27, 2016 to June 6, 2016. See 38 C.F.R. § 4.30. REASONS FOR REMAND The February 2020 Board remand instructed the RO to obtain updated treatment records and, if necessary, schedule a VA shoulder examination. The RO obtained the requested treatment records and a new shoulder VA examination in November 2020. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). As noted above, the Veteran underwent VA shoulder examination to assess his disability in November 2020. However, the November 2020 examiner failed to provide non-weight bearing and weight bearing range of motion assessments. Additionally, the November 2020 noted pain on passive range of motion, but failed to provide range of motion measurements. Further, in its April 2019 remand, the Board found the Veteran's December 2012 VA shoulder examination inadequate for rating purposes because it failed to follow the guidelines set forth in the Sharp and Correia cases cited above. The RO obtained an October 2019 examination to address the deficiencies of the December 2012 examination, however the October 2019 examination does not adequately address any functional loss the Veteran may have experienced prior to the October 2019 examination. Based on the foregoing insufficiencies, the Board finds a new examination and medical opinion are necessary prior to final adjudication of this matter. Accordingly, this matter is REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected right shoulder disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight bearing and non-weight bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flare-ups in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Also, obtain a retrospective opinion from the VA examiner, regarding the severity of the Veteran's service-connected right shoulder disability throughout the pendency of the appeal. In particular, the examiner is asked to state the following: a) whether the Veteran's flare-ups have resulted in functional loss of the right shoulder at any time since April 2010, and if so, the examiner is asked to express that loss in terms of degrees of motion lost due to such factors as pain, weakness, fatigability, incoordination. b) whether the Veteran has experienced functional ankylosis of the right shoulder during flare-ups at any time since April 2010. If the examiner determines such a retrospective opinion is not possible, or would be speculative, the examiner must state whether this is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.