Citation Nr: 1303785 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-30 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a temporary total rating under 38 C.F.R. §§ 4.29 or 4.30 for the periods of April 1, 2009, to May 4, 2009, and May 2, 2010, to June 28, 2010. 2. Entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge in August 2012, but did not report to the hearing. As the record does not contain further explanation as to why the Veteran did not report to the hearing, or any additional requests for an appeals hearing, the Board deems the Veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2012). Also, following the most recent adjudication of the Veteran's claims by the RO in a November 2010 supplemental statement of the case, additional medical evidence, including a December 2012 VA examination report, was added to the claims file. However, as such evidence is not pertinent to the Veteran's claim for a temporary total rating under 38 C.F.R. §§ 4.29 or 4.30, which is the matter decided below, remand to the agency of original jurisdiction for initial review of the evidence is not warranted. See 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1304(c) (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The record does not reflect, and the Veteran has not asserted, that he has been hospitalized for a period of 21 or more days, or that any treatment for a service-connected disability resulted in either surgery or immobilization by cast of one major joint or more during either the period of April 1, 2009, to May 4, 2009, or that of May 2, 2010, to June 28, 2010. CONCLUSION OF LAW The criteria for a temporary total rating under 38 C.F.R. §§ 4.29 or 4.30 for the periods of April 1, 2009, to May 4, 2009, and May 2, 2010, to June 28, 2010, have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.29, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a May 2009 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in May 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. The Veteran has not been afforded a VA examination in connection with his current claim. However, in this case, the information and evidence of record contains sufficient competent evidence to decide the claim, and the claim is being denied for lack of legal entitlement based on facts that have not been disputed by the Veteran. Therefore, remand for a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. Subject to certain provisions, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. 38 C.F.R. § 4.29 (2012). Without regard to other provisions on the rating schedule, a total disability rating (100 percent) will be assigned when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two or three months from the first day of the month following such hospital discharge or outpatient release. In order to attain the temporary total disability rating, a veteran must demonstrate that his 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. 38 C.F.R. § 4.30 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran has the following service-connected disabilities: lumbosacral strain, patellofemoral syndrome of the left knee, medial epicondylitis of the left elbow, status post left wrist fracture, left ankle sprain, tinnitus, internal derangement and patellofemoral pain syndrome of the right knee, right knee instability, and gastritis. As reflected in his May 2009 claim and a July 2010 statement, the Veteran asserts that he is entitled to compensation under 38 C.F.R. §§ 4.29 or 4.30 for VA treatment received on April 1, 2009, and from May 3, 2010, to May 7, 2010. The Veteran asserts that such treatment prevented him from being able to work from April 1, 2009, to May 4, 2009, and from May 2, 2010, to June 28, 2010. However, considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claim must be denied. The record does not reflect, and the Veteran has not asserted, that he has been hospitalized for a period of 21 or more days, or that any treatment for a service-connected disability resulted in either surgery or immobilization by cast of one major joint or more during the period in question. April 1 to May 6, 2010, VA treatment records reflect that on April 4, the Veteran presented to a VA emergency room with a four day history of numbness, tingling and weakness to the lower extremities, which had become progressively worse. The Veteran was evaluated, which included magnetic resonance imaging (MRI) evaluation. On April 6, the Veteran was again treated for his back pain and numbness in the legs and feet. The Veteran was again evaluated on April 15, and attended VA outpatient physical therapy sessions on April 20, 22, and 24, and on May 1, 4, and 6. He was again evaluated for his back condition on April 27, May 4, and May 6. VA treatment records further reflect that the Veteran was hospitalized from May 4 to May 7, 2010, for diagnoses of weakness and sensory problems, MRI negative, history of chronic headaches, posttraumatic stress disorder, history of major depression and anxiety disorder, and history of motor vehicle accident with a chronic low back pain and knee pains. On discharge on May 7, it was noted that the suggested plan for follow-up was outpatient appointments, and that the Veteran could resume his activities as before one to two days after discharge. June 2 to June 25 VA treatment records reflect outpatient treatment, but no hospitalization, surgery, or treatment with a cast. The Veteran also submitted a copy of a Health Care Provider Certification for Family Medical Leave and/or Special Leave Requests dated June 25, 2010, filled out by a licensed practitioner or health care provider. The form indicates that a condition with onset of May 2, 2010, and for which the Veteran sought treatment on May 4, 2010, required the supervision of a health care provider, required multiple visits or treatment such as physical therapy but resolved, and caused the Veteran to be off work for three consecutive days or more. It was noted that the Veteran was hospitalized from May 4 to May 7, was not able to perform the essential functions of his position, and would be able to perform work duties without restrictions on June 28, 2010. The Veteran indicated on the copy of the form submitted to VA that the form was an attempt to receive a temporary 100 percent rating from May 2, 2010, until June 28, 2010, when he returned to work. While the Board recognizes the Veteran's assertions that, due to his service-connected disabilities, for which he received VA treatment, he was not able to perform his work duties from April 1, 2009, to May 4, 2009, and from May 2, 2010, to June 28, 2010. However, the record does not reflect, and the Veteran has not asserted, that he has been hospitalized for a period of 21 or more days, or that any treatment for a service-connected disability resulted in either surgery or immobilization by cast of one major joint or more during either the period of April 1, 2009, to May 4, 2009, or that of May 2, 2010, to June 28, 2010. Thus, the evidence does not demonstrate that the Veteran met the legal criteria for a temporary total rating under 38 C.F.R. §§ 4.29 or 4.30 in either April and May of 2009, or May and June of 2010, and the Veteran has not asserted any facts to the contrary. Accordingly a temporary total rating under 38 C.F.R. §§ 4.29 or 4.30 must denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, where the law is dispositive of a claim, the claim must be denied where there is lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER A temporary total rating under 38 C.F.R. §§ 4.29 or 4.30 for the periods of April 1, 2009, to May 4, 2009, and May 2, 2010, to June 28, 2010, is denied. REMAND Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. In this case, the Veteran has the following service-connected disabilities: lumbosacral strain, rated 20 percent; patellofemoral syndrome of the left knee, rated 20 percent; medial epicondylitis of the left elbow, rated 10 percent; status post left wrist fracture, rated 10 percent; left ankle sprain, rated 10 percent; tinnitus, rated 10 percent; internal derangement and patellofemoral pain syndrome of the right knee, rated 10 percent; right knee instability, rated 10 percent; and gastritis, rated noncompensable (0 percent). In December 2012, the Veteran was provided a VA examination of his service-connected disabilities. While the VA examiner addressed, individually, each disability's effect on the Veteran's ability to work, the examiner did not provide an opinion as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities, alone or in combination. Also, while in an October 2010 statement of employment the Veteran indicated that he was still working full time, it was not indicated in the December 2012 VA examination report whether the Veteran was still working or not. Under these circumstances, the claims file should be returned to the December 2012 VA examiner so that the examiner can provide an addendum opinion addressing whether the Veteran's service-connected disabilities, alone or in combination, render him unable to secure and follow a substantially gainful occupation. See 38 C.F.R. § 3.159(c) (4) (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Also, the claims file reflects that the Veteran had been receiving treatment from the Temple VA Medical Center (VAMC). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The most recent VA treatment records in the claims file are dated in June 2010. Accordingly, on remand, the RO or AMC should obtain any pertinent records from the VAMC in Temple dated from June 2010 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records related to the Veteran's service-connected disabilities from the Temple VAMC, dated from June 2010 to the present. All records and/or responses received should be associated with the claims file. 2. Forward the Veteran's claims file to the VA examiner who conducted the Veteran's December 2012 examination, and ask that an addendum opinion be provided to determine whether his service-connected disabilities result in unemployability. The claims file must be made available to the examiner. The VA examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to obtain or retain employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities. If the December 2012 VA examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested information. If the requested opinions cannot be provided without another examination of the Veteran, schedule the Veteran for a VA examination with an appropriate examiner to provide the requested opinions and information. A complete rationale must be provided for any opinions expressed. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of his claim. See 38 C.F.R. § 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs