BVA9507934 DOCKET NO. 93-14 921 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a total rating for a period of convalescence following surgery performed in March 1990. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Associate Counsel INTRODUCTION The veteran served on active duty from August 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) from a September 1991 RO decision which denied a claim for an increased rating for the veteran's service-connected right shoulder disability. A temporary total rating based on the need for convalescence following surgery in March 1990 was also denied. At a RO hearing held in January 1992, the veteran, through his representative, indicated that he only wished to pursue his claim of entitlement to a temporary total rating related to his March 1990 surgery, and not a claim for increased rating beyond the presently assigned 30 percent evaluation for his shoulder disability. Consequently, the Board has limited its consideration to the claim for a total rating for a period of convalescence. A claim for compensation may be considered a claim for pension. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a temporary 100% rating for his service-connected post-operative right shoulder disability. It is maintained that surgery performed on March 30, 1990--a total shoulder replacement--was such that he qualifies for a temporary total rating. He contends that he was not aware that he could file a claim for this sort of benefit until sometime in April 1991. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of a claim for a total rating due to replacement surgery for a service-connected right shoulder disability, but only for the period from May 2, 1990, to March 30, 1991. FINDINGS OF FACT 1. The veteran underwent a right shoulder replacement (prosthesis) at a private hospital on March 30, 1990, which is related to a service-connected right shoulder disability. 2. A claim for increased compensation benefits based on this surgery and its residuals was not received until May 2, 1991. CONCLUSION OF LAW An increased (100 percent) rating for right shoulder replacement surgery is warranted from May 2, 1990, to March 30, 1991. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.400(o), 4.71(a) Diagnostic Code 5051 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is service-connected for a right shoulder dislocation disability which had its onset in the early 1940's. On March 29, 1990, he underwent a total right shoulder replacement at a private hospital. He was released from the hospital on April 2, 1990. On May 2, 1991, the veteran filed a claim for increased compensation benefits, including a claim of entitlement to a convalescent rating pursuant to 38 C.F.R. § 4.30 (1994). In September 1991, the veteran was examined by a VA physician who found that surgery had produced an excellent functional result. The veteran had an excellent range of motion at 130 degrees forward flexion, 90 degrees abduction, with good internal and external rotation reaching behind his head and behind the small of his back. A hearing was conducted in January 1992. The veteran testified that he underwent surgery at a private hospital because it was an emergency and he could barely move his shoulder. He further explained that the reason he did not file for VA benefits earlier was because he was unaware that he was entitled to such benefits. His representative explained that the veteran wanted to limit his appeal to the claim of entitlement to a convalescent rating. The RO has denied the claim for a temporary total rating on the grounds that the veteran did not file a claim for this benefit until more than one year after the hospitalization, presumably relying on § 3.400(o) (1994). However, pursuant to 38 C.F.R. § 4.71(a) Diagnostic Code 5051, a rating of 100% is given for the prosthetic replacement of the shoulder joint for 1 year following implantation of the prosthesis. Private medical records show that the veteran underwent a right shoulder replacement in March 1990. This procedure would consequently entitle him to receive a 100% rating, provided a claim is received by VA. The assignment of an effective date for awarding increased disability compensation is subject to the terms 38 C.F.R. § 3.400(o)(2) (1994), which states that the effective date is to be the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if [a] claim is received within 1 year from such date otherwise, [the] date of receipt of [the] claim." Although it was factually ascertainable that the veteran sustained an increase in disability as of the date of his surgery, March 1990, he did not file a claim which was received within one year of that date. Consequently, his award of disability compensation is limited to one year preceding the date the claim was received. Because his claim was received on May 2, 1991, the effective date of his entitlement to a temporary total disability rating is May 2, 1990. As has already been stated, Diagnostic Code 5051 awards disability for one year following implantation of the prosthesis. The surgical replacement in this case occurred on March 30, 1990. The veteran is thus entitled to a 100% rating through the date of March 30, 1991. Regarding the question of a temporary total rating for convalescence under 30 C.F.R. § 4.30 (1994), it should be noted that this section allows a temporary total rating if, for instance, surgery necessitates at least one month of convalescence. However, in light of the discussion above awarding the veteran 100% disability under the schedular rating, it is not necessary to address this issue since he is to be awarded the maximum amount of compensation allowable under the regulations for the surgical procedure. Diagnostic Code 5051. With few exceptions such as monthly compensation under 38 U.S.C.A. § 1114 (1994), none of which exceptions apply here, an award of disability compensation cannot exceed a total rating. See 38 U.S.C.A. § 1155 (West 1991). ORDER An increased (100 percent) total rating for right shoulder replacement surgery is granted from May 2, 1990, to March 30, 1991, subject to the laws and regulations governing the award of monetary benefits. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.