Case 22032381

MARY E. RUDE · 2022 · Case ID: 22032381

MIXED

Summary

The veteran, who served in the U.S. Army from November 1975 to June 1977, appeals the denial of entitlement to a temporary total evaluation for convalescence following left shoulder arthroscopic surgery. The veteran sought a temporary total rating from May 9, 2016, through October 10, 2016. The Board reviewed the medical evidence, including operative notes, outpatient records, and physical therapy assessments. The primary issue was whether the veteran required convalescence for the surgery during the periods claimed. The Board found that the veteran was entitled to a temporary total evaluation from May 9, 2016, to August 31, 2016, as the evidence indicated complete restriction from using his left arm during this period. However, the Board denied entitlement for the period prior to May 9, 2016, finding no basis for an earlier effective date. For the period from September 1, 2016, to October 10, 2016, the Board denied an extension of the temporary total rating. Medical records indicated that after the initial three months, the veteran was permitted to perform activities of daily living and administrative duties, and by August 2016, the orthopedic surgeon noted the shoulder was healing well, despite some residual pain and restrictions on heavy lifting. The Board concluded that the evidence overwhelmingly supported the initial three-month convalescence period but did not support an extension, as the veteran was able to perform administrative work and had improved range of motion by the later dates. The Board found the evidence persuasive against extending the convalescence period beyond August 31, 2016.

Rationale

No basis for effective date prior to May 9, 2016; Claim denied as criteria not met

Service Branch

ARMY

Special Benefit

TEMPORARY TOTAL (§4.30)

Docket No.

17-59 625

Full Decision Text

Citation Nr: 22032381
Decision Date: 06/02/22 Archive Date: 06/02/22

DOCKET NO. 17-59 625
DATE: June 2, 2022

ORDER

Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery prior to May 9, 2016, is denied.

Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from May 9, 2016, to August 31, 2016, is granted.

Entitlement to an extension of the temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from September 1, 2016 to October 10, 2016, is denied.

FINDINGS OF FACT

1. The evidence of record demonstrates that the Veteran underwent left shoulder arthroscopic surgery on May 9, 2016.

2. The evidence of record demonstrates that the Veteran has been shown to have been in need of convalescence for his left shoulder arthroscopic surgery for the period from May 9, 2016 to August 31, 2016.

3. The evidence of record demonstrates that the Veteran has not been in need of convalescence for his left shoulder arthroscopic surgery for the period from September 1, 2016 to October 10, 2016.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery prior to May 9, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30.

2. The criteria for entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from May 9, 2016 to August 31, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30.

3. The criteria for entitlement to an extension of the temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from September 1, 2016 to October 10, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 1975 to June 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In his November 2017 substantive appeal to the Board, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for January 2022. However, the Veteran, through his representative, cancelled the hearing in a statement prior to the date of the hearing. Therefore, the Veteran's hearing request is withdrawn. See 38 C.F.R. § 20.702.

Legal Criteria

The Veteran specifically contends that he is entitled to a temporary total rating for his left shoulder surgery of May 2016 until October 10, 2016. In his November 2017 formal appeal to the Board, the Veteran said that all he wants is his temporary pay for his down time for surgery from May 5, 2016 to July 5, 2016, while housebound, and that he was under doctor's care until October 10, 2016, until he was released from limitations. The Board notes that for his service-connected left shoulder disability, the Veteran is currently in receipt of an evaluation rating of 100 percent effective May 9, 2016, based on surgical or other treatment necessitating convalescence and an evaluation rating of 10 percent effective July 1, 2016, which was effectuated in an October 2017 rating decision.

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 38 C.F.R. § 4.30(a) (1), (2) or (3) 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. 38 C.F.R. § 4.30(a). The termination of these total ratings will not be subject to 38 C.F.R. § 3.105(e). Id. Such total rating will be followed by appropriate schedular evaluations. Id. 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. Id. Total ratings will be assigned 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 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. Id.

A total rating under this section will require full justification on the rating sheet and may be extended as follows: Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a)(1), (2) or (3) of 38 C.F.R. § 4.30(a). 38 C.F.R. § 4.30(b). 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).

Notations in the medical record as to a veteran's incapacity to work after surgery must be taken into account 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).

1. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery prior to May 9, 2016, is denied.

2. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from May 9, 2016 to August 31, 2016, is granted.

3. Entitlement to an extension of the temporary total
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).

1. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery prior to May 9, 2016, is denied.

3. Entitlement to an extension of the temporary total evaluation because of treatment for a service-connected condition requiring convalescence for left shoulder arthroscopic surgery from September 1, 2016, 2016 to October 10, 2016, is denied.

Turning to the objective medical record of evidence, a May 9, 2016 VA medical center (VAMC) surgery operative note reflects that the Veteran had left shoulder arthroscopy, rotator cuff repair, distal clavicle excision, AC reconstruction with lockdown device and allograft tendon os acromiale excision. The surgeon noted no apparent complications. On May 10, 2016, the orthopedic doctor noted a pain control of non-weight bearing, no lifting, pushing, or pulling with left upper extremity and recover at home once the Veteran cleared physical occupational therapy. A May 2016 VAMC treatment record on the day following the surgery reflects that the Veteran had a precaution note of left upper extremity sling at all times, no passive range of motion or active range of motion to left shoulder. The physical therapist noted that the Veteran was independent at baseline and ambulated with a cane. The physical therapist noted that the Veteran reported a history of falls due to neuropathy in feet and knees giving out. The physical therapist further noted that the Veteran tolerated the evaluation adequately, he presented with independent mobility with cane and family support at home for activities of daily living. The physical therapist noted that no further acute physical therapy was needed. The May 10, 2016 discharge summary noted patient problems of impaired skin with a goal date of one month, deferred, resolved nausea control issues and pain was deferred.

A late May 2016 VAMC orthopedic surgery outpatient note reflects that the Veteran was seen for follow-up of the left shoulder arthroscopic rotator cuff repair surgery. The examiner noted that the Veteran had at least an instability according to the pre-operative report as well as evidence of an os acromiale. The examiner further noted that the Veteran had been maintained in his shoulder sling, was scheduled to start his CPM within the next several days and needed a referral to outside the VA eventually to begin physical therapy. The examiner noted that the excision areas looked benign and the portal, both anteroposteriorly, and the leading edge of the intercuticular stitches, were removed or being removed. The Veteran was to be seen in six weeks for reevaluation and needed no pain medication. Another late May 2016 VAMC treatment record reflects that the Veteran stated that he felt great since such a burden has been lifted off his shoulder.

A June 2016 VAMC treatment record reflects that the Veteran presented for management of his chronic neck pain, he had numerous musculoskeletal issues at present, and recently underwent left shoulder reconstruction. The examiner noted that since that surgery with the use of the sling, he had been having increased neck pain and muscle spasm.

A July 2016 VAMC treatment record reflects that the Veteran was two months status post-surgery and had been doing well with respect to his precautions until approximately two weeks ago when he was watering his plants and attempted to lift a large 3-gallon watering can with his left operative arm. The Veteran reported that he heard a pop and subsequently had increased left shoulder pain which has since resolved. Imaging was performed to ensure that the clavicular repair was not disrupted and there were no signs of acute fracture.

Although the Veteran underwent a July 2016 VA shoulder and arms examination for his right shoulder, the range of motion for his opposite left joint was also tested. At that time, the examiner noted that that the Veteran was right hand dominant and found a left shoulder range of motion of flexion and abduction to 80 degrees and an external and internal rotation to 45 degrees upon initial range of motion testing.

An August 4, 2016 VAMC treatment record reflects that the Veteran stated that he was marching in a parade 5 days ago and ever since his left heel has been hurting. An August 10, 2016
that the clavicular repair was not disrupted and there were no signs of acute fracture.

An August 4, 2016 VAMC treatment record reflects that the Veteran stated that he was marching in a parade 5 days ago and ever since his left heel has been hurting. An August 10, 2016 ear, nose and throat VAMC treatment note reflects that the Veteran was swimming in the last week when he experienced muffling in his ear. An August 10, 2016 VAMC orthopedic surgery note reflects that the Veteran stated that he gets an occasional pain into his triceps and occasional muscle twitch in the lateral triceps. He felt that his shoulder was still tight and his biggest problem was in trying to reach in abduction. The orthopedist noted that the Veteran completed his physical therapy. The orthopedist further noted that the Veteran complained of left foot pain since Sunday. The orthopedist further noted that the Veteran jumped off of a parade float and landed hard on his left foot and feels that he may have broken it. The orthopedist noted that upon examination, the left shoulder wound is well healed, minimally tender about the left shoulder, able to forward flex to 170 degrees, abduct to about 90 degrees and internally rotated to about his left hip pocket and x-ray showed changes consistent with his coracoclavicular ligament reconstruction and distal clavicle excision as well as excision of the os acromiale, good alignment and position was noted. The orthopedist noted a plan to continue left shoulder range of motion exercises and stretching as well as begin gentle strengthening of the left shoulder. The orthopedist noted that the left foot x-ray may be suggestive of a non-displaced fracture.

A September 2016 VAMC podiatry treatment record notes that after his March 2016 injection of the left heel, the Veteran had relief until July 2016. In August 2016 he was injected again and in August his left foot had been swelling up when sleeping and when walking there was a pressure sensation. The Veteran felt all his left toes up into his ankle swell. On August 6th to 7th he was in a parade and jumped off a float of 3 feet. He started having pain in his foot and had X-rays by Milwaukee VAMC on August 10, 2016. The Veteran was seeing an orthopedic surgeon for another concern; however, the orthopedic surgeon stated that although the X-rays were negative, he probably had a hair line fracture of the arch.

An October 11, 2016 VAMC orthopedic surgery follow-up note for the left shoulder surgery reflects that the Veteran reported that he was able to perform he activities of daily living and was also doing administrative type work. The Veteran reported pain and stiffness in the shoulder with lateral motion past 90 degrees and not any improvement in internal rotation. The nurse noted that examination of the left shoulder revealed a well-healed longitudinal excision above the clavicle closed well-healed arthroscopic portals. The nurse further noted active range of motion to be about 150 degrees of forward flexion and 150 to 160 degrees of abduction. The nurse indicated that the Veteran was doing well from an orthopedic standpoint.

The nurse noted that the Veteran remained under the care of the orthopedic clinic for a total of six months from the time of his surgery. The nurse noted that for the first three months (12 weeks), the Veteran was completely restricted from using his left arm, in any capacity which would require him to actively move his left arm/ shoulder. After twelve weeks, he would be able to perform activities of daily living with the left shoulder, also paperwork, and administrative type (desk) duties may be performed using the left arm. The nurse further noted that the Veteran continued to have restrictions for weightlifting for a total of six months from the day of surgery and no heavy lifting or puling through October 24, 2016. Then at six months follow-up he would be able to perform all activities as tolerated. The Veteran reported being concerned about back issues.

A late October 2016 VAMC treatment record notes that the Veteran has been doing well, continued to be active setting up for hunting. The Veteran said that he was sitting for a while cracking walnut shells and
weeks, he would be able to perform activities of daily living with the left shoulder, also paperwork, and administrative type (desk) duties may be performed using the left arm. The nurse further noted that the Veteran continued to have restrictions for weightlifting for a total of six months from the day of surgery and no heavy lifting or puling through October 24, 2016. Then at six months follow-up he would be able to perform all activities as tolerated. The Veteran reported being concerned about back issues.

A late October 2016 VAMC treatment record notes that the Veteran has been doing well, continued to be active setting up for hunting. The Veteran said that he was sitting for a while cracking walnut shells and then he had a lot of fatigue. The nurse advised the Veteran to continue his blood pressure medications. A later October 2016 VAMC treatment record noted that the Veteran was concerned with his blood pressure running low.

In this case, the evidence establishes that the Veteran was admitted for rotator cuff surgery of the left shoulder on May 9, 2016. VA regulations provide that a temporary total rating will be made effective from the date of the hospital admission for the surgery. Here, the Board cannot find a basis for an effective date earlier than May 9, 2016. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran's request for a temporary total evaluation prior to May 9, 2016 must therefore be denied.

However, the Board finds that from May 9, 2016 to August 31, 2016, the evidence demonstrates that the Veteran was completely restricted from using his left arm in any capacity which would require him to actively move his left arm/ shoulder, as reflected in the October 2016 VAMC treatment, and first noted in the May 10, 2016 orthopedic doctor's note. This is a longer grant of the temporary total rating than what had been assigned previously by the Regional Office, which was from May 9, 2016 to June 30, 2016. Even if the Veteran did engage in physical activity that contradicted his recover restrictions, the Veteran's treatment records show that he had been placed on complete arm-usage restriction for the first three months following his surgery. Additionally, the July 2016 VA shoulder and arm examination reflects that the Veteran's range of motion of the left shoulder was still limited during this time. Hence, the evidence reflects that from May 9, 2016 to August 31, 2016, the Veteran's surgery required this 3 months of convalescence.

On the other hand, upon review of the medical evidence, the Board finds that an extension of the temporary 100 percent disability rating beyond the initial 3 months under 38 C.F.R. § 4.30 is not warranted. In the first three month stage of recovery following the May 9, 2016 left shoulder arthroscopic surgery, based on the October 2016 VAMC treatment note, the Veteran was completely restricted from using his left arm in any capacity for only the first three months. However, after the first three months, he was no longer completely restricted and was permitted to perform activities of daily living with the left shoulder, also paperwork, and administrative type (desk) duties.

Paramount, the October 11, 2016 VAMC orthopedic record shows that the Veteran was performing administrative work. As this notation in the medical record as to the Veteran's incapacity to work after surgery must be taken into account, the Board finds that the medical evidence demonstrates that after the first three months of the May 9, 2016 left shoulder arthroscopic surgery, the Veteran was able to perform activities of daily living, return to administrative employment work and in fact had returned to administrative work sometime prior to October 11, 2016. Seals, 8 Vet. App. at 296-97; Felden, 11 Vet. App. at 430.

Further, in regard returning to administrative type work to sometime prior to October 11, 2016, the Board more narrowly turns to the August 2016 through October 2016 medical evidence.

The October 2016 treatment note reflects that the Veteran was under the care of the orthopedic clinic for a total of six months from the time of his surgery of which the first three months (12 weeks), he was completely restricted from using his left arm, in any capacity, then after twelve weeks, he would be able to perform activities of daily living with the left shoulder, also paperwork, and administrative type (desk) duties may be performed using the left arm. In August 2016, the medical evidence demonstrates that the Veteran was in a parade, swimming, and reporting other issues. The Board acknowledges that the Veteran also reported pain in his left shoulder in August 2016; however, the objective medical evidence demonstrates that the orthopedist found the left shoulder wound was well healed, minimally tender about the left shoulder, able to forward flex to 170 degrees, abduct to about 90 degrees and internally rotated to about his left hip pocket and X-ray showed changes consistent with his coracoclavicular ligament reconstruction and distal clavicle excision as well as excision of the os acromiale, and that there was good alignment and position. The orthopedist noted a plan to continue left shoulder range of motion exercises and stretching as well as begin gentle strengthening of the left shoulder.

Here, the evidence demonstrates that the stage of recovery following the surgical operation was from the first three months from the May 2016 surgery. Felden, 11 Vet. App. at 430 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 415 (30th ed., 2003)). While the Veteran appears to have cited to the October 11, 2016 orthopedic record to indicate his full period of convalescence, this record evidences that while the Veteran was under orthopedic care for six months, he was able to return to perfuming his activities of daily living and administrative type work prior to October 11, 2016. Id.

Moreover, although the Veteran continued to have restrictions for weightlifting for a total of six months from the day of surgery with no heavy lifting, pushing or pulling through October 24, 2016, such restrictions were not complete restrictions unlike the first three months; these restrictions were no heavy lifting, pushing or pulling through October 24, 2016. Even so, by July 2016, the Veteran lifted the 3-gallon water can, of which the medical professionals noted no fracture from the incident. Then, by August 2016, the Veteran reported that he participated in a parade, and at this time the orthopedic physician noted that the Veteran was doing well in regard to his left shoulder repair. Even further, the October 2016 VAMC treatment note demonstrates that the Veteran was permitted to perform activities of daily living and administrative type tasks after the first 3 months. Here, the Board cannot find a basis of justification to extend the temporary total evaluation for convalesce beyond the initial 3 months. Sabonis, 6 Vet. App. at 430.

The sole competing evidence of record is the Veteran's lay statements, and this is taken in light of the October 11, 2016 treatment note. The Board has considered the Veteran's lay statements. However, there is no lay nor medical evidence to indicate that the left shoulder arthroscopic surgery of May 9, 2016 caused ongoing issues. The Board acknowledges the Veteran's reports of shoulder, neck, and foot pain. However, the August 10, 2016 VAMC treatment from the orthopedic physician reflects that the Veteran was doing well in regard to his left shoulder repair. The physician noted a treatment plan of the Veteran continuing with his left shoulder range of motion exercises and stretching as well as beginning gentle strengthening of the left shoulder. Hence, the Board finds that the medical evidence demonstrates that there were no ongoing issues from the May 9, 2016 left shoulder arthroscopic surgery past the first three months.

The provisions of 38 C.F.R. § 4.30 essentially provide compensation for the temporary disability caused by a surgical procedure with recognition that the overall disability rating should be re-evaluated after stabilization. The section is not intended to be used for a reinjury incurred months following the surgery, after the Veteran has stabilized, and that it is unrelated to the surgical procedure that originally necessitated the temporary total disability rating. With the instant decision, the Veteran is in receipt of a 10 percent rating for his left shoulder disability since September 1,
, the Board finds that the medical evidence demonstrates that there were no ongoing issues from the May 9, 2016 left shoulder arthroscopic surgery past the first three months.

As explained above, the medical evidence does not support a finding that the requirements under 38 C.F.R. § 4.30 were met prior to May 9, 2016 and since September 1, 2016. The medical evidence would have to show severe postoperative residuals such as incompletely healed surgical wounds, 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 (with full weight bearing forbidden) or immobilization by cast, without surgery, of one major joint or more. None of these factors were present in the Veteran's case from prior to May 9, 2016 and since September 1, 2016. The Veteran's post-surgical status was proceeding well based on the objective medical evidence. While range of motion testing continued to show pain, the evidence demonstrated that there was increased movement based on the July 2016 VA shoulder and arm examination at which point flexion was 80 degrees compared to the October 2016 orthopedic visit, which showed flexion was about 150 degrees.

Based upon the medical and lay evidence of record, the Board finds that the persuasive evidence is against a finding of any basis to extend the Veteran's convalescence period beyond the period already granted following the May 9, 2016 surgery. It does not appear that any of the criteria cited in § 4.30 were satisfied as of September 1, 2016, with respect to the May 9, 2016 surgery. Instead, the medical evidence overwhelmingly supports the finding that the Veteran's left shoulder was "stable" as of some point in August 2016. The Veteran was medically permitted to return to work from that point with certain restrictions. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). The Board, therefore, finds that a grant of a temporary total convalescence rating prior to May 9, 2016 and an extension of a temporary total convalescent rating under the provisions of 38 C.F.R. § 4.30 from September 1, 2016 1, 2016, to October 10, 2016, is not warranted.

Thus, the Board finds in conclusion, as the evidence is not in approximate balance and is persuasively against the assignment of any earlier or later periods of temporary total evaluations. The benefit of the doubt rule is therefore further inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F. 4th 776 (2021).

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Q. Alli, 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.

Analyze in VA Law Explorer