Citation Nr: 1303189 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-32 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a temporary total evaluation for the purpose of convalescence under 38 C.F.R. § 4.30 due to surgery performed by VA on January 4, 2007. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from December 1997 to April 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania. By that rating action, the RO&IC, in part, continued a 10 percent evaluation for the service-connected right ankle disorder, and denied the claim of entitlement to a temporary total evaluation for the purpose of convalescence under 38 C.F.R. § 4.30 due to surgery performed by VA on January 4, 2007. The Veteran appealed the RO&IC's October 2007 rating decision to the Board. During the pendency of the appeal, in a July 2008 rating decision, the RO&IC assigned a 20 percent evaluation for the service-connected right ankle disorder, effective June 25, 2007, the date VA received the Veteran's claim for an increased evaluation. In March 2010 and January 2011, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development. In September 2012, the Board denied the increased rating claim for arthritis of the right ankle, status-post surgical reconstruction. The Board also remanded the temporary total evaluation claim for further development, and it since returned for further appellate consideration. As noted in the prior remand, the issues of entitlement to claims of service connection for cellulitis and posttraumatic stress disorder (PTSD), whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss, and entitlement to an evaluation in excess of 10 percent for a service-connected lumbar spine disability have been raised by the record. There is no indication that the Agency of Original Jurisdiction (AOJ) has yet initiated development of these claims. The Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On January 4, 2007, the Veteran underwent a gynecologic surgical procedure at a VA medical facility to diagnose any potential disabilities of the cervix due to abnormal endocervical and ectocervical cells found on Papanicolaou (pap) smear. 2. This surgical procedure was not for treatment of a service-connected disability, and did not result in severe postoperative residuals or otherwise necessitated convalescence for one month or more. CONCLUSION OF LAW The criteria for a temporary total evaluation for the purpose of convalescence under 38 C.F.R. § 4.30 due to a surgical procedure performed by VA on January 4, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A letter satisfying the VCAA notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to her in July 2007, before initially adjudicating the claim. That letter informed her of the evidence required to substantiate the claim and of her and VA's respective responsibilities in acquiring supporting evidence. Additional VCAA letters were sent to the Veteran in October 2009, March 2010, January 2011, March 2011, April 2012, May 2012, and October 2012. Thereafter, the claim was readjudicated in a November 2012 SSOC. The Veteran has also received additional notice concerning the downstream disability rating and effective date elements of her claim. See Dingess, supra. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO/AMC obtained her service treatment records, VA treatment records, and federal employment records dated during the applicable time period, from January to March 2007. Therefore, the Board is satisfied the RO made reasonable efforts to obtain any identified medical and other records. Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for a Temporary Total Evaluation In November 2006, the Veteran had a pelvic examination, to include a pap smear, at the Hudson Valley VA Medical Center. Pap smear findings dated in December 2006 were abnormal; specifically there was an epithelial cell abnormality characterized as low grade squamous intraepithelial lesion (LGSIL). A colposcopy and directed biopsy were clinically indicated. The Veteran was subsequently referred to the Bronx VA Medical Center for the indicated procedure. On January 4, 2007, the Veteran underwent the colposcopy. During that procedure, a biopsy was done with endocervical curettage (ECC). She now asserts entitlement to a temporary total rating based on a period of convalescence of 30 days or more after the January 2007 surgical procedure, presumably as related to her service-connected fibrocystic ovarian disease. Temporary total ratings are to be assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative 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 of house confinement, 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). Treatment of a service-connected disability is a prerequisite to entitlement to these convalescent benefits. There is no evidence showing that the Veteran underwent the January 2007 surgical procedure to treat a service-connected disability. The Veteran's surgical procedure was for the purpose of detecting and treating any potential disability of the cervix after the prior Pap smear revealed abnormal cervical cells. According to a January 2007 informed consent report, the colposcopy procedure entails examining the vagina and cervix using a colposcope. The endocervical curettage involves removing tissue from the endocervix, which is sent to the laboratory to examine for disease or infection. The Veteran is not service-connected for a disability of the cervix. There is no indication that the Veteran's procedure was in any way related to her service-connected fibrocystic ovarian disease. Additionally, there is no evidence showing that the procedure necessitated at least one month of convalescence. Rather, the Veteran's VA employment records show that she took only one- 8 hour day of sick leave on the day of the surgical procedure. A month or more of convalescence has clearly not been shown. The employment records also shown that the Veteran took annual leave on random days later in January, as well as in February and March 2007; however, there is no indication that such leave was for convalescence purposes; rather, that leave was designated as either annual or family care leave, with at least 2.5 days taken due to bad weather or because her daughter was ill. At any rate, as already mentioned, treatment of a service-connected disability is a prerequisite to entitlement to these convalescent benefits, and such has not been shown. The January 4, 2007, surgical procedure also did not result in any severe post-operative residuals, such as an incompletely healed surgical wound or the necessity of house confinement. In fact, the physician who performed the procedure noted that it had been completed with no complications, and the biopsy report indicates unremarkable endocervical and ectocervical mucosa with chronic endocervicitis in only a minute endocervical fragment. The Board acknowledges the Veteran's assertion that she is entitled to a total temporary evaluation based on convalescence; however her opinion is not competent medical evidence. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The record does not show the Veteran is a medical professional, with the training and expertise to provide clinical findings regarding the nature and extent of any condition of the cervix, or any relationship the procedure might have to her service-connected fibrocystic ovarian disease. Consequently, her statements are credible concerning her subjective complaints - but they do not constitute competent medical evidence for the purposes of showing the existence of a medical nexus between her procedure and her service-connected fibrocystic ovarian disease. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). There is simply no basis to award a temporary total evaluation for the purpose of convalescence due to the colposcopy and biopsy of the cervix performed by VA on January 4, 2007. Therefore, because that surgical procedure was not performed secondary to the service-connected fibrocystic ovarian disease, but rather secondary to a non service-connected condition of the cervix, the claim for temporary total rating benefits based on convalescence must be denied. ORDER The claim of entitlement to a temporary total evaluation for the purpose of convalescence under 38 C.F.R. § 4.30 due to a surgical procedure performed by VA on January 4, 2007, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs