Citation Nr: 25001069 Decision Date: 01/27/25 Archive Date: 01/27/25 DOCKET NO. 16-22 600 DATE: January 27, 2025 ORDER Entitlement to an extension of total temporary rating (TTR) due to convalescence for a service-connected right shoulder disability after October 31, 2015, is denied. FINDING OF FACT The Veteran's right-shoulder disability was not in a period of convalescence beyond the initial three-month period, or after October 31, 2015, and an extension of TTR based on 4.30(b) was not found to be warranted. CONCLUSION OF LAW The criteria for an extension of TTR for right-shoulder disability after October 31, 2015, 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 had honorable active service with the United States Army from September 1981 to December 1985. In October 2023, the Board issued a decision which granted temporary total evaluation for service-connected right shoulder disability from September 1, 2015, to October 31, 2015, and denied entitlement to an extension of temporary total rating for convalescence beyond October 31, 2015. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2024, the Veteran and the Secretary of the Veterans Affairs (collectively, as parties) filed a Joint Motion for Partial Remand (JMPR). The parties requested that the Court vacate the Board's October 2023 decision in part and remand the matter for further consideration and instructions consistent with the JMPR. The JMPR stipulated that the Board failed to provide sufficient reasons or basis for finding that the Veteran was not convalescing after the end of October 2015. The Court pointed out that the Veteran was in physical therapy before and after October 2015 and also noted that on March 23, 2016, the Veteran was found to have achieved expected goals from physical therapy and was discharged from physical therapy. The Court granted the JMPR in June 2023. Entitlement to an extension of TTR due to convalescence for a service-connected right shoulder disability after October 31, 2015 The Veteran has a TTR under 38 C.F.R. § 4.30 for service-connected right shoulder disability from July 2, 2015, to November 1, 2015. On July 2, 2015, the Veteran had right shoulder arthroscopic surgery. The Veteran requests an extension of TTR for convalescence until May 1, 2016, under 38 C.F.R. § 4.30(a)(1). The Veteran through his representative has argued that TTR should be calculated from the first day of the month following a hospital discharge or outpatient release. They contend that the Veteran was not released from outpatient treatment until March 31, 2016. § 4.30 Convalescent ratings. A total disability rating (100 percent) 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) of this section 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. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. (a) 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 (Effective as to outpatient surgery March 1, 1989.) (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 cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.) (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.) In Felden v. West, 11 Vet. App. 427, 430 (1998), the United States Court of Veterans Appeals (Court), citing Dorland's Illustrated Medical Dictionary 374 (28th ed. 1994), defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id., citing Webster's Medical Desk Dictionary 606 (1986). The Board notes that the purpose of a TTR pursuant to 38 C.F.R. § 4.30 is to aid a Veteran during the immediate post-surgical period. The Board on review of the records, notes that the Veteran was discharged from the hospital on July 2, 2015, the date of his surgery. See CAPRI received March 14, 2016. This is the date upon which his TTR should be calculated. As such, his initial one-, two-, or three-month period would flow from August 1, 2015, the first day of the month following his hospital discharge. See Felden v. West at 430. The Veteran has already received TTR from July 2, 2015, to November 1, 2015, and this is the full benefits offered under 38 C.F.R 4.30(a). 38 C.F.R 4.30(b) states that 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. In Felden v. West, it was noted that the appellant was only entitled to a TTR for up to three months from the day of the month following his surgery and that the Secretary then had the discretion to grant an extension of one, two or three months after the initial three-month period. See Felden v. West at 431. Here unlike Felden v. West, the main issues are whether it may be warranted for the Veteran to receive an extension of 1, 2, or 3 months beyond the initial three months given under section (a) paragraph (1) through section (a) paragraph (3), and then whether it may be warranted for the Veteran to receive an additional extension of 1 or more months beyond the initial 6 months period which may be made under section (a) paragraph (2), or section (a) paragraph (3), upon approval of the Veterans Service Manager. Answering the second issue first, the Board finds that there is no reasonable basis for an extension beyond the 6 months period and the claim will not be remanded for the approval of the Veterans Service Manager. In reviewing whether he should receive an extension of 1 or more months beyond the initial 6 months period, section (a) paragraphs (2), and (3) are the only paragraphs considered. Therefore, the Veteran would have to have 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 cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or immobilization by cast, without surgery, of one major joint or more. Here, the records do not show these types of severe post-surgical residuals and it does not appear that the Veteran has argued he has any of these types of severe post-surgical residuals, as described in section (a) paragraphs (2), and (3). The Veteran was in physical therapy during this period. The Court noted that the Veteran was not discharged from physical therapy until March 2016. However, none of the records show that he had incompletely healed wounds, stumps, immobilization, body casts, or any of the described severe post-surgical residuals. The Board finds that the evidence is persuasively against a finding that the Veteran should receive any discretionary extension of TTR beyond the initial 6 months period. As to the period from November 1, 2015, to February 29, 2016, the Board finds that the Veteran's right shoulder condition does not warrant a discretionary extension of TTR. 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. As an initial matter the evidence from November 1, 2015, to February 29, 2016, does not support serious post-surgical residuals as described under section (a) paragraph (2) or (3). As noted above, the Veteran would have to have 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 cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or immobilization by cast, without surgery, of one major joint or more. As to paragraph (a) (1) surgery necessitating at least one month of convalescence, the Board finds that the Veteran was no longer convalescing from November 1, 2015, to February 29, 2016. In making this finding the Board notes that the hospital discharge from July 2015 stated that the Veteran was likely to have six weeks of convalescence. See CAPRI received March 2016. Additionally, the orthopedic surgeon noted in July 2015 that he would be out of work until August 24, 2015. Id. The Court has also held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. See Seals v. Brown, 8 Vet. App. 291, 296-297 (1995); Felden v. West, at 430. Here, the Veteran does not argue that he remained out of work after October 31, 2015. While a return to work is not fully dispositive of the ending of a period of convalescence, the Board finds the Veteran's return to work highly relevant and supports that the Veteran was capable of performing the tasks of daily living. The Court has emphasized that the Veteran was still in physical therapy from November 1, 2015, to February 29, 2016, and up until his discharge in March 2016 from physical therapy. However, the Board notes that in August 2015, around when the Veteran was released to return to work, he had completed his first phase of rehabilitation. His medical chart on August 20, 2015, states he had completed an "excellent phase 1" of rehabilitation and that after that he would start strengthening rehabilitation. The Board gives the hospital discharge from July 2015, which stated that the Veteran was likely to have six weeks of convalescence significant weight, as competent, credible, and supported by the evidence at the time of the surgery. See CAPRI received March 2016. Additionally, the Board gives significant weight to the orthopedic surgeon that the Veteran would be out of work until August 24, 2015. Id. While the Board also considered the release from physical therapy as highly relevant evidence that the Veteran was still strengthening his shoulder, the Board does not find that to be the same as convalescence. The Board finds that the Veteran was finished with his convalescence prior to November 1, 2015, as he had returned towards a normal or healthy state. He had finished his first phase of rehabilitation in physical therapy and had been able to return to normal activities like work. The Board, as the finder of fact, makes this factual finding based on the medical evidence as stated above. These factual findings were supported by the records and relied on the medical judgements from the hospital discharge as well as other records. The Board has not relied on its own medical judgement, nor has it imposed an "artificially high standard" in rendering its determination. The evidence persuasively weighs against a TTR extension beyond October 31, 2015. Although the Veteran continued to experience right shoulder impairment beyond this date, the evidence reflects following October 31, 2015, the right shoulder surgical procedure did not meet section (a) paragraph 2 or 3. Additionally, a TTR 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. Here, after the required three months of TTR, the Veteran was rated at 40 percent disabling under DC 5201. The Board does not find that a rating under 4.30(b) is warranted. Hence, further extension of the TTR for right shoulder postoperative convalescence is not warranted. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an extension for a TTR from October 31, 2015, based on surgical or other treatment necessitating convalescence for the right shoulder disability is warranted. Rather, the evidence persuasively weighs against this claim. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parnell, C. E. 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.