Citation Nr: 25004074 Decision Date: 03/26/25 Archive Date: 03/26/25 DOCKET NO. 19-16 765 DATE: March 26, 2025 ORDER Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 based upon a November 2010 right shoulder surgery is granted. FINDING OF FACT The evidence of record demonstrates that the Veteran has been shown to have been in need of at least one month of convalescence following his November 2010 right shoulder surgery. CONCLUSION OF LAW The criteria for a temporary total rating pursuant to 38 C.F.R. § 4.30 based upon a November 2010 right shoulder surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1995 to May 1999. This matter is before the Board on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, a hearing was held before the undersigned. A transcript of the hearing is of record. In an August 2022 decision, the Board denied the claim on appeal. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2023 Joint Motion for Remand (JMR) the parties agreed that the Board's decision should be vacated. In April 2023, the Court vacated the Board's decision, and remanded the issue to the Board for action consistent with the JMR. In a subsequent September 2023 decision, the Board again denied the claim on appeal. In a November 2024 JMR the parties agreed that the Board's decision should be vacated. In November 2024, the Court vacated the Board's decision, and remanded the issue to the Board for action consistent with the November 2024 JMR. Entitlement to a Temporary Total Disability Rating A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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). Notations in the medical record as to a veteran's incapacity to work after surgery must be considered in the evaluation of a claim brought under the provisions of § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden, 11 Vet. App. at 430 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed. 2003)). 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)). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. Id. Temporary total ratings for convalescence are payable from the date of entrance into the hospital and are awarded after discharge. 38 C.F.R. § 3.401(h)(2). The purpose of a temporary total rating is to aid the appellant 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. The inability to return to any employment would, in fact, show a need for continuing convalescence under § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995). The Veteran seeks a temporary total rating for surgery conducted on November 23, 2010. To be considered, a claim must be filed within one year of the date that it is factually ascertainable that a service-connected disability worsened if the claim is received within one year from such date and no retroactive award of increased compensation may be awarded after basic entitlement has ended. The Veteran indicated at his hearing before the Board in January 2022 that VA never addressed his 2010 surgery when he previously filed a claim for an increased rating for his right shoulder covering the 2010 time period. In August 2022, the Board denied a claim for an effective date earlier than October 3, 2014, for the grant of a temporary total rating for the Veteran's October 3, 2014 right shoulder surgery. The Board found that while the Veteran also sought a temporary total rating for surgery conducted on November 23, 2010, the claim was not filed until May 2015, over four years after the surgery. Therefore, a temporary total rating was not warranted. 38 C.F.R. § 3.400(o)(1). The March 2023 JMR indicated that the Board's August 2022 decision failed to address whether a November 30, 2010 VA Form 21-0820, in which the Veteran stated that he sought an "Informal Claim Increase" for his "Degenerative joint disease, R shoulder condition" was an informal claim for a temporary total evaluation. The JMR also stated that the Board failed to address a December 2010 letter from the Veteran, which was received by VA in January 2011, where he indicated that he had a right shoulder injury in June 2010 and that he underwent a shoulder arthroscopy in November 2010, was an informal claim for a temporary total evaluation. In this submission, he also stated that he was trying to recover from the procedure and was receiving vigorous physical therapy treatments due to the range of motion that was lost. In September 2023, the Board again denied a claim for an effective date earlier than October 3, 2014, for the grant of a temporary total rating for the Veteran's October 3, 2014 right shoulder surgery, as it could not have begun prior to the Veteran's hospital admission for his surgery conducted on October 3, 2014. Regarding the November 23, 2010 right shoulder surgery, the Board found that the statements referenced in the March 2023 JMR raised an informal claim for entitlement to a temporary total rating for the November 2010 right shoulder surgery. However, the Board found that the claim was implicitly denied by the Board's September 2020 decision denying a claim for an increased rating for degenerative joint disease of the right shoulder. The parties to the November 2024 JMR agreed that while the Board implicitly denied the claim in September 2023, the Board did not comply with the March 2023 JMR directives, which determined that no VA decision of record addressed the November 2010 surgery, and whether a temporary total rating was warranted due to this surgery. In considering the statements referenced in the March 2023 JMR sympathetically and in conjunction with each other, the Board finds that they raise an informal claim for entitlement to a temporary total rating for the November 2010 right shoulder surgery. In particular, the December 2010 statement discusses the November 2010 surgery and the treatment the Veteran had been receiving after the surgery. Per the March 2023 and November JMR's, the claim for entitlement to a temporary total rating for the November 23, 2010 surgery pursuant to 38 C.F.R. § 4.30 has not been adjudicated and remains open and pending. Therefore, the Board will proceed to adjudicate the claim on its merits. Private treatment records from November 23, 2010 note that the Veteran underwent right shoulder surgery (arthroscopic subacromial decompression and glenohumeral synovectomy) for impingement of the right shoulder. At the time of the surgery, service connection was in effect for degenerative joint disease of the right shoulder. Post surgery evidence included November 2010 and December 2010 certificates to return to work or school issued by the Veteran's surgeon, who indicated that the Veteran was excused from work until he was re-evaluated. The December 2010 certificate indicates that he was excused from work for 3 weeks. Private treatment records from the Veteran's surgeon show that six days after surgery in November 2010, the Veteran was complaining of soreness and was to begin physical therapy for his right shoulder. He was also prescribed pain medication for relief. In December 2010, he reported that his shoulder was still sore. He still exhibited pain on range of motion, and it was indicated that he would continue vigorous physical therapy. In January 2011, he had soreness and tenderness. In February 2011, an examination showed that he essentially had full range of motion with assistance but had soreness with almost any motion. There was minimal tenderness to palpation over the anterior aspect of the joint only. In March 2011, he reported soreness with motion. There was full forward flexion and extension, internal and external rotation to approximately 75 degrees and active abduction to 90 degrees with pain. The surgeon noted that the Veteran could be released for light duty with restrictions. In May 2011, the Veteran reported soreness, but was attending therapy (not noted to be vigorous) and was doing light duty work. From June 2011 to October 2011, it was noted that the Veteran reported soreness and pain in the right shoulder but continued with therapy and doing light duty work. A January 2011 VA examiner indicated that the Veteran reported severe pain in the right shoulder, with stiffness and weakness. He occasionally used a sling. There was no effect on activities of daily living. There would be increased pain if he was lying on his right side. His range of motion showed flexion from 0 to 105 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 45 degrees. Range of motion was limited by pain. There was no loss of function with repetitive use. The examiner noted mild functional limitation. The evidence shows that the Veteran's November 2010 right shoulder surgery required at least one month convalescence. The Veteran was in pain and was prescribed medication for pain relief and was referred for physical therapy by his surgeon. Therefore, it is established that the Veteran underwent surgery which necessitated at least one month of post-operative convalescence and the criteria for a temporary total rating under 38 C.F.R. § 4.30(a)(1) have been met. Accordingly, as the criteria under 38 C.F.R. § 4.30 are met, entitlement to a temporary total rating is granted. To avoid prejudice to the Veteran, the Board will allow the RO to assign an effective date and duration of the temporary total rating in the first instance. If the Veteran disagrees with the RO's decision, he may file a request for review on the appropriate VA-promulgated form. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Yoon, 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.