Case A26039216

Summary

The veteran, who served from October 2002 to February 2004, July 2004 to April 2005, and May 2009 to April 2010, appeals the denial of entitlement to an extension of a temporary total rating for a left shoulder disability. The Board reviewed the decision from August 2022, which granted a temporary total rating from May 25, 2011, to August 31, 2011, following the veteran's left shoulder surgery. The veteran contended that he was entitled to a 12-month temporary total rating due to continued symptoms post-surgery. However, the Board found that the evidence did not support an extension beyond August 31, 2011. Service treatment records from June 2011 indicated the veteran had discontinued his sling and pain medication, had begun physical therapy, and reported improvement. An October 2011 record noted the shoulder healed well with restored range of motion, despite some residual pain and a small deficit in internal rotation. While the veteran's subsequent profiles noted persistent shoulder pain and limitations, the Board determined these reflected the underlying disability rather than a need for convalescence from the surgery itself. The Board concluded that the criteria for an extension under 38 C.F.R. § 4.30 were not met after August 31, 2011, as the veteran did not require prolonged convalescence, immobilization, or house confinement due to the surgery. The benefit of the doubt doctrine was considered but not applied, as the evidence persuasively weighed against the claim.

Rationale

Convalescence period ended by August 31, 2011.; Service treatment records indicated improvement and discontinuation of post-surgical support.; Persistent symptoms reflected underlying disability, not need for extended convalescence.

Full Decision Text

Citation Nr: A26039216
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 230621-357234
DATE: April 28, 2026

ORDER

Entitlement to an extension of the temporary total rating for a left shoulder disability is denied.

FINDING OF FACT

The Veteran's left shoulder surgery did not necessitate convalescence from September 1, 2011 onwards.

CONCLUSION OF LAW

The criteria for entitlement to an extension of a temporary total rating for left shoulder beyond August 31, 2011 have not been met. 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 October 2002 to February 2004, July 2004 to April 2005, and May 2009 to April 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2022 higher-level review rating decision issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

In the June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the June 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. Evidence submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, was not considered by the Board in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

In this case, evidence was added to the claims file during a period of time when new evidence was not allowed. Specifically evidence was added after the June 2022 rating decision, which was subsequently subject to higher-level review. As the Board is deciding the claim, it may not consider this evidence in its decision.  38 C.F.R. § 20.300.  The Veteran may file a Supplemental Claim and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

In a February 2025 decision, the Board denied entitlement to an extension of the Veteran's temporary total rating. The Veteran appealed the February 2025 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2025, the Court vacated the part of the Board's decision regarding this issue and remanded the claim for readjudication in compliance with the Joint Motion for Partial Remand. 

Entitlement to an extension of the temporary total rating for left shoulder.

A temporary total rating for convalescence is assigned from the date of hospital admission and continues for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results 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.  38 C.F.R. § 4.30 (a).  

An extension of 1, 2, or 3 months beyond the initial 3 months may be granted pursuant to 38 C.F.R. § 4.30 (a)(1),(2), or (3), and extensions of one or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30 (b)(1),(2).

"Convalescence" is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury.  Felden v. West, 11 Vet. App. 427, 430 (1998). "Recovery" is defined as the act of regaining or returning toward a normal or healthy state.  The purpose of a temporary total convalescence evaluation is to
. § 4.30 (a)(1),(2), or (3), and extensions of one or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30 (b)(1),(2).

"Convalescence" is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury.  Felden v. West, 11 Vet. App. 427, 430 (1998). "Recovery" is defined as the act of regaining or returning toward a normal or healthy state.  The purpose of a temporary total convalescence evaluation is to aid a claimant 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 indicating a level of incapacitation associated with recuperating from the effects of an operation.  Notations in the medical record as to the claimant's inability to work after surgery must be considered in the evaluation.  38 C.F.R. § 4.3; See Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430.

In an August 2022 rating decision, the AOJ awarded a temporary total rating from May 25, 2011 to August 31, 2011 following the Veteran's left shoulder surgery. The Veteran contends that he is entitled to a temporary total rating for 12 months following his surgery because he continued to experience symptoms associated with his left shoulder after surgery. See e.g., February 2023 VA Form 21-4138.

Following his left shoulder surgery, the Veteran was provided with a rehabilitation protocol. 

A June 2011 service treatment record noted that two weeks after the Veteran's surgery he had discontinued his sling and narcotic pain medications. He had also begun physical therapy. 

In another June 2011 service treatment record, the Veteran reported mild pain but reported that he could tell he was getting better. 

In another June 2011 record, the Veteran reported that he had been working on his shoulder range and it was improving. He reported that he was not limiting his left upper extremity and he had not been to physical therapy lately. 

An October 2011 service treatment record noted that the Veteran was six months status post left shoulder surgery, which healed well. The examiner noted that the Veteran restored most of his range of motion but noted that the Veteran reported a small deficit with internal rotation. The Veteran reported that he would have occasional pain if he slept on his arm. Forward flexion was to 160 degrees and external rotation was to 45 degrees. The examiner noted that internal and external rotation resulted in a palpable clunk and audible snapping behind the left scapula. The examiner diagnosed the Veteran with left snapping scapular syndrome and referred him to physical therapy for scapular dyskinesia - re-stabilization therapy protocol. In January 2021, a VA examiner noted that the Veteran had snapping scapular syndrome at the time of his surgery that still persists, and is "refractory to any interventions tried by the surgeon to correct." This supports a finding that the snapping scapular syndrome is not a consequence of the surgery. 

In January 2012 the Veteran was put on profile for left shoulder pain, lower back pain, and hip pain. It was noted that he did not meet retention standards. His profile noted that he had completed physical therapy on several occasions as well as shoulder surgery, but his symptoms persisted. 

In April 2013, a consultation sheet noted that the Veteran's shoulder disability symptoms had plateaued and that he would benefit from physical therapy. 

Based on the above, the Board finds that extension of the Veteran's temporary total evaluation is not warranted. The evidence of record does not indicate that the Veteran required convalescence due to his left shoulder surgery after August 31, 2011. The Veteran was able to remove his sling and stop pain medications less than one month following surgery. Further, in October 2011, six months following his surgery, a clinician noted that the Veteran's shoulder had healed well and that the surgery had restored most of his range of motion. 

The Veteran asserts that his January 2012 and August 2012 profiles confirm that his shoulder was still recovering following his surgery. However, the existence of a profile itself does not necessarily indicate that the Veteran still required convalescence following his surgery. For example, the January 2012 and August 2012 profiles noted that the Veteran was put on permanent profile for several conditions such as left shoulder pain, lower back pain, hip pain, posttraumatic stress disorder, and insomnia. The April 
 pain medications less than one month following surgery. Further, in October 2011, six months following his surgery, a clinician noted that the Veteran's shoulder had healed well and that the surgery had restored most of his range of motion. 

The Veteran asserts that his January 2012 and August 2012 profiles confirm that his shoulder was still recovering following his surgery. However, the existence of a profile itself does not necessarily indicate that the Veteran still required convalescence following his surgery. For example, the January 2012 and August 2012 profiles noted that the Veteran was put on permanent profile for several conditions such as left shoulder pain, lower back pain, hip pain, posttraumatic stress disorder, and insomnia. The April 2013 consultation sheet discusses his left shoulder disability and his scapular dyskinesia and does not state that these are residuals of the surgery. Instead, the consultation sheet is discussing the underlying left shoulder disability. The profiles noted that the Veteran engaged in conservative therapy measures, physical therapy, and shoulder surgery; but his symptoms persisted and the conditions failed to improve. These notations themselves do not indicate that residuals from the Veteran's recovery from the surgery itself interfered with his military duties, but rather the symptoms associated with his shoulder disability itself impacted his ability to complete his military duties.

The Board acknowledges that the Veteran continued to experience symptoms associated with his left shoulder disability following his left shoulder surgery. However, a temporary total rating is not intended to replace the schedular disability ratings afforded the Veteran based on his disability. The fact that the Veteran continues to experience symptoms of his left shoulder disability after surgery does not lead to the conclusion that the temporary total evaluation must continue until there are no symptoms of the disability left. The purpose of 38 C.F.R. § 4.30 is to compensate the Veteran for convalescence after undergoing surgery. The temporary nature of the rating suggests that the purpose is to cover the Veteran for the period of incapacitation immediately following surgery. The total rating is to be followed by an appropriate schedular rating. 38 C.F.R. § 4.30, Any additional limitation experienced by the Veteran is rated under DC 5201 for limitation of motion of the shoulder. 

An extension of the temporary total evaluation under 38 C.F.R. § 4.30(b) is not warranted because the criteria in 38 C.F.R. § 4.30(a)(1)-(3) were not met after August 31, 2011. First, as noted above, the Veteran's convalescence period had ended by August 31, 2011. 38 C.F.R. § 4.30(a)(1). Second, the record does not show that he had incompletely healed wounds, therapeutic immobilization of the shoulder joint, a body cast, necessity for house confinement, or use of a wheelchair or crutches due to regular weight bearing being prohibited. 38 C.F.R. § 4.30(a)(2). Last, there was no immobilization by cast of a major joint. 38 C.F.R. § 4.30(a)(3). Therefore an extension of time is not warranted under 38 C.F.R. § 4.30 (b). 

In reaching this decision the Board considered the benefit of the doubt doctrine, however, as the evidence persuasively weighs against the claim, the doctrine is not for application.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Dennis, 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.