Citation Nr: 0829289 Decision Date: 08/28/08 Archive Date: 09/04/08 DOCKET NO. 06-00 372A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following surgery. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Van Wambeke, Associate Counsel INTRODUCTION The veteran served on active duty from July 1981 to July 1984 and from December 1990 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the claim. FINDING OF FACT The veteran's claim for a temporary total evaluation for convalescence based on surgery performed in January 2001, January 2002, February 2002 and May 2002 was received by the RO in June 2004, more than one year after the medical procedure upon which the claim for convalescence is based. CONCLUSION OF LAW The criteria for a temporary total rating based on the need for convalescence following surgery have not been met. 38 C.F.R. §§ 3.400(o)(2), 4.30 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for surgeries performed on her feet in January 2001, January 2002, February 2002 and May 2002. Her claim was received by the RO in June 2004. See VA Form 21-4138. In pertinent part, service connection for bilateral pes cavus and for surgical removal of the fourth metatarsal head, right foot, was granted in an August 2002 rating decision. In the September 2002 notice letter, the RO noted that during her VA examination, the VA examiner noted that the veteran reported undergoing a correction to the surgical removal of the fourth metatarsal head in February 2002. The RO informed the veteran that if this surgery required convalescence of a month or more, she may wish to submit the supporting evidence for rating board review. The veteran did not respond to this letter. The applicable laws and regulations provide that a temporary total rating may be assigned for a period of one, two or three months if at least one month of convalescence is necessitated by surgery for a service-connected disability, with such benefits payable from the date of entrance into the hospital or the date of outpatient treatment for the period in question. 38 C.F.R. § 3.401(h)(2), 4.30. An extension of the total convalescence rating is available up to one year from the initial date of hospitalization. 38 C.F.R. § 4.30(b). The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An award of a temporary total rating for convalescence under the provisions of 38 C.F.R. § 4.30 is effective the "date of entrance into the hospital, after discharge from hospitalization (regular or release to non-bed care)." 38 C.F.R. § 3.401(h). An exception to the rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). As noted above, the veteran's claim for a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following surgeries performed on her feet in January 2001, January 2002, February 2002 and May 2002 was received by the RO in June 2004, more than one year after the surgeries were performed and in the case of the January 2001 surgery, prior to the date on which service connection was granted for bilateral pes cavus. See August 2002 rating decision. The Board notes that the veteran's representative's acknowledges that the surgical reports were more than a year old at the time of their submission. See June 2004 statement. The Board acknowledges that the veteran reported receiving VA medical treatment for her service-connected foot conditions subsequent to the surgeries. However, she did not report this treatment until after one year from the possible entitlement to that benefit had expired, meaning that the VA was not on notice of the existence of these record until she had filed her belated claim. See June 2004 VA Form 21-4138. In a September 2004 deferred rating decision, her representative was informed that if the veteran is contending that there are VA treatment records that meet the requirement for an informal claim, she should identify the dates and places of such treatment. The representative did not respond to this portion of the deferred rating decision, but did submit an October 2004 response to other issues raised. The RO subsequently sent a letter to the veteran in which it asked her to identify the dates and places of such VA treatment. See October 2004 letter. The veteran did not respond to this letter. Since the veteran did not claim entitlement to a temporary total rating based upon the need for convalescence until more than one year after the date of the surgeries and her need for convalescence began, her claim does not fall within the exception to the rule establishing the effective date of a claim for increased rating. The pertinent facts are not in dispute and the law is dispositive. We note as well, that the legislative and public policy purpose of providing a temporary total rating benefit is to provide veterans with a subsistence support during convalescence, when employment is precluded. To accomplish this purpose, therefore, it stands to reason that the claim for the benefit sought must be filed in proximity to the need for the benefit. Allowing claims to be filed years after the need for such support has expired, i.e., after the veteran has returned to work, would subvert the purpose of the benefit. In any case, the Board is without authority to alter controlling law and regulations. Accordingly, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis, 6 Vet. App. at 430 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5- 2004. ORDER A temporary total rating under the provisions of 38 C.F.R. § 4.30 is denied. ____________________________________________ Heather J. Harter Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs