Citation Nr: 1305239 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-36 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a temporary total rating based on hospitalization for a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from September 1958 to September 1961, January 1964 to January 1967, and from May 1982 to August 1985. This matter comes before the Board of Veterans Appeals (Board) from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. FINDINGS OF FACT 1. The Veteran was not service-connected for peripheral vascular disease of his left lower extremity at the time of his April 2004 related hospitalization. 2. The Veteran's hospitalization for surgery related to his peripheral vascular disease was less that 21 days. CONCLUSION OF LAW The criteria for the assignment of a temporary total disability rating for the April 2004 hospitalization for surgical treatment of the Veteran's peripheral vascular disease of his left lower extremity have not been met. 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A November 2008 letter apprised the Veteran of the criteria for establishing a temporary total disability rating due to hospitalization, the evidence the Veteran was responsible for obtaining, and the evidence VA would obtain on his behalf. The letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's private hospitalization records, which are the primary records pertinent to this appeal, have been obtained. The Veteran has not identified any other relevant, available records. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in May 2008. 38 C.F.R. § 3.159 (c) (2). As this claim does not turn on either the existence, etiology, or severity of a medical condition, but rather turns on whether the Veteran's hospitalization meets certain regulatory requirements, a VA examination was not provided. 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 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. Temporary Total Rating The Veteran claims entitlement to a temporary total rating based on a 2004 hospitalization and related home health for the surgical treatment of his peripheral vascular disease of his left lower extremity, which the Veteran contends was a service-connected disability at the time of his hospitalization. A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Notwithstanding that hospital admission was for a 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. Likewise, if service connection for a disability requiring hospitalization is granted during a hospitalization in excess of 21 days, a temporary total disability rating is warranted. 38 C.F.R. § 4.29 (b). Meritorious claims of veterans who are discharged from the hospital with less than the required number of days, but need post-hospital care and a prolonged period of convalescence, will be referred to the Director of Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 4.29 (g). The Veteran was hospitalized for surgical treatment for peripheral vascular disease of his left lower extremity at the hospital where he underwent the surgery from April 19, 2004 to April 22, 2004. The Veteran was transferred to another in-patient facility on April 22, 2004, where he remained until his discharge on May 4, 2004. He received related home health care from May 5, 2004 to May 26, 2004. At the time of this 2004 hospitalization, service connection is in effect for (1) hypertension with a history of arteriosclerosis and calcification of the abdominal aorta; (2) lumbosacral strain with disc disease, arthritis, and vertigo attributable to spinal injury; (3) bilateral hip degenerative arthritis; (4) residuals of a right thumb fracture; (5) bilateral hearing loss; and (6) tinnitus. Service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected hypertension with a history of arteriosclerosis and calcification of the abdominal aorta, was not in effect until March 2005. The Veteran asserts that his treating physician states that his arteriosclerosis and his peripheral vascular disease of his lower extremities are one and the same, as they are both vascular diseases. He asserts that his peripheral vascular disease was therefore a service-connected disability at the time of his 2004 hospitalization. The Veteran was not service-connected for arteriosclerosis, but rather hypertension with a history of arteriosclerosis and calcification of the abdominal aorta. The November 2008 rating decision granting service connection for peripheral vascular disease of the bilateral lower extremities states that service connection was granted because the arteriosclerotic manifestations of his service-connected hypertension were deemed to have caused peripheral vascular disease. See generally 38 C.F.R. § 4.104 (providing distinct ratings for differing forms of arteriosclerotic disease). The Veteran's hospitalization was not for a service-connected disability. The Veteran was not hospitalized in excess of 21 days in April and May of 2004; rather, his in-patient care from April 19, 2004 to May 4, 2004 totaled 16 days. After his hospitalization discharge, the Veteran received in-home health care from May 5, 2004 through May 26, 2004. As the Veteran was not receiving in-patient or home health care for a service-connected disability, the provisions of 38 C.F.R. § 4.29 (g) that would allow VA to refer this claim to the Director of Compensation and Pension for extraschedular consideration and inapplicable. The preponderance of the evidence is against the claim for a temporary total disability rating for hospitalization of a service-connected disability; and the assignment of a temporary total rating for hospitalization is not warranted. ORDER A temporary total rating based on hospitalization for a service-connected disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs