Citation Nr: 1307754 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-42 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a February 2006 prostatectomy for residuals of a radical retropubic prostatectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from December 1966 to July 1970. His decorations include the Bronze Star Medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas, which denied a temporary total disability rating for the Veteran's residuals of a radical retropubic prostatectomy under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a February 2006 radical prostatectomy. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran underwent a radical retropubic prostatectomy at the Morristown Memorial Hospital in February 2006. 2. On February 4, 2008, the Veteran filed a claim of service connection for residuals of a prostatectomy and entitlement to benefits under the provisions of 38 C.F.R. § 4.30. 3. In a May 2008 rating decision, service connection for residuals of radical retropubic prostatectomy associated with herbicide exposure, to include erectile dysfunction and special monthly compensation for the loss of use of a creative organ, was granted, effective from February 4, 2008, which was the date of the Veteran's claim. 4. The Veteran's original claim of service connection was not received until more than one year following the completion of any treatment or other therapy following surgery. 5. The evidence of record does not establish that the Veteran's surgery resulted in complications that would warrant additional convalescence such that continued convalescence based on the February 2006 surgery would be warranted on or after February 4, 2008. CONCLUSION OF LAW The criteria for entitlement to a temporary total disability rating for the Veteran's residuals of a radical retropubic prostatectomy under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a February 2006 prostatectomy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.150, 3.155, 3.400, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in February 2008 and March 2008 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. The March 2008 letter specifically provided notice of how to substantiate a claim for a temporary total disability rating based on hospitalization or the need for convalescence following surgery, pursuant to 38 C.F.R. § 4.30. He has also been provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. Here, the issue turns on whether the Veteran is entitled to a particular benefit prior to the effective date of service connection. A medical examination is not necessary to make a determination with regard to this appeal because the issue turns on a legal question, not a factual determination. No findings from any examination will provide probative evidence to support a grant in this appeal. The private outpatient treatment records obtained provide all the necessary evidence to allow the Board to render an informed determination. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Temporary Total Disability Rating Temporary total disability ratings for convalescence are governed by 38 C.F.R. § 4.30 which states that temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results 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(a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. Extensions of one or more months up to six months beyond the initial six months period may be made for reasons (2) or (3) above. 38 C.F.R. § 4.30(b). Critically, to warrant benefits pursuant to 38 C.F.R. § 4.30, the disability requiring hospitalization or convalescence must be service-connected. In this case, the Veteran was hospitalized and had prostate surgery in February 2006. Private hospital treatment records from Morristown Memorial Hospital dated in February 2006 show that the Veteran underwent a radical retropubic prostatectomy. He was admitted on February 9, 2006, the day of surgery, and discharged home on February 12, 2006, tolerating pain medications by mouth and a regular diet with plans for physical therapy. Arrangements were made to return on an outpatient basis for the removal of a urethral catheter. The Veteran filed an original claim of service connection for residuals of a prostatectomy and for benefits under 38 C.F.R. § 4.30 that was received at the RO on February 4, 2008. In a May 2008 rating decision, service connection for residuals of radical retropubic prostatectomy associated with herbicide exposure, to include erectile dysfunction and special monthly compensation for the loss of use of a creative organ, was granted, effective from February 4, 2008, which was the date his claim was received at the RO. Because service connection was not established prior to February 4, 2008, and the Veteran's surgery was in February 2006, service connection for the disability being treated was not in effect at the time; subsequent convalescence was not necessary due to a service-connected disability and basic entitlement to the benefit under 38 C.F.R. § 4.30 is not established. The only way to establish basic entitlement to 38 C.F.R. § 4.30 benefits, is to first establish service connection for the underlying disability. Service connection must be in effect at the time the 38 C.F.R. § 4.30 temporary total disability rating criteria are met. Otherwise, basic entitlement to this benefit does not exist. That is exactly the case here. The RO granted service connection for residuals of radical retropubic prostatectomy, effective February 4, 2008, the date of the Veteran's claim. The Veteran did not file a notice of disagreement with the effective date of service connection nor has he asserted that there was clear and unmistakable error in the rating decision with respect to the assigned effective date. The Board is mindful, however, that the original period of convalescence can be extended up to 6 months, if necessary, and even longer if it is shown by the record that the Veteran suffered severe post-surgical complications. Here, though, the Veteran has not provided any evidence to suggest that his period of convalescence following surgery required an extension to the point that convalescence would still be necessary at the time service connection first became effective on February 4, 2008. The hospital discharge instructions advised the Veteran to undergo physical therapy and to return for removal of a catheter. During an April 2008 VA examination, the Veteran's residuals are described as occasional loss of urinary control and erectile dysfunction, for which the Veteran has been separately rated. The record, however, does not show that the Veteran was in need of convalescence on or after February 4, 2008. Finally, under 38 C.F.R. § 4.115b, Diagnostic Code 7528, for prostate cancer, a 100 percent disability rating is assigned following cessation of surgery, chemotherapy, or other therapeutic procedure and shall continue with a mandatory VA examination at the expiration of six months. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, then the cancer is rated based on residuals of voiding dysfunction or renal dysfunction, whichever is the predominant disability. In this case, the Veteran's initial disability rating assigned for the service-connected residuals of a radical retropubic prostatectomy was 40 percent. However, the evidence fails to demonstrate that the Veteran's claim of service connection was received less than six months following the completion of any antimeoplastic treatment or other therapy following surgery. As such, a total rating based on the schedular criteria pertaining to rating the residuals of prostate cancer is also not for application in this case as of the effective date of service connection. For the foregoing reasons, the criteria for establishing basic entitlement to a temporary total disability rating for the Veteran's residuals of a radical retropubic prostatectomy under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a February 2006 prostatectomy are not met in this case. ORDER A temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a February 2006 prostatectomy for residuals of a radical retropubic prostatectomy is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs