Citation Nr: 1326868 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-15 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospital treatment in excess of 21 days for a service-connected condition. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1982 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran participated in a five week residential rehabilitation treatment program for substance abuse from July 2009 to September 2009. 2. Service connection is in effect for depressive disorder, rated at 30 percent, in addition to other physical disabilities. 3. The May 2011 VA examiner concluded that there are concurrent or multiple Axis I diagnoses of depressive disorder and alcohol abuse in remission and that the Veteran's alcohol abuse is related to and a progression of the Axis I diagnosis of depressive disorder as it was an attempt to self-medicate the depression. CONCLUSION OF LAW The criteria for a temporary total rating due to hospital treatment in excess of 21 days from July 2009 to September 2009 are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.29 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The issue of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 for hospital treatment in excess of 21 days for a service-connected condition has been considered with respect to VA's duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable outcome of the appeal, which is a full grant of benefits sought, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist with respect to the issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Temporary Total Rating Legal Criteria Under 38 C.F.R. § 4.29, 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 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 (2012). Subject to the provisions of paragraphs (d), (e), and (f) of this section, 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. Temporary Total Evaluation Analysis The Veteran seeks a temporary total rating under 38 C.F.R. § 4.29 for "in-house" treatment received for alcohol abuse. See May 2011 VA Form 9. The RO has denied the Veteran's claim for a temporary total rating, on the basis that the treatment records did not show that the diagnosis of alcohol dependence had a relationship to the Veteran's service-connected disabilities. See December 2009 rating decision and May 2011 Statement of the Case. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the issue of whether the Veteran's service-connected psychiatric disability required hospital treatment in a VA hospital for a period in excess of 21 days such that a temporary total rating is warranted. The Board notes that a September 2009 VA discharge summary shows that the Veteran successfully participated in the Substance Abuse Residential Rehabilitation Treatment Program (SARRTP) Substance Abuse Program at the Salisbury VA Medical Center (VAMC) from July 28, 2009 to September 1, 2009. The September 2009 VA SARRTP discharge note reads that the Veteran "actively participated in the SARRTP, addressing issues related to substance abusing behavior which will enhance his recovery potential." The Board notes that service-connection is not in effect for the Veteran's substance abuse. Rather, the Veteran is service-connected for the Axis I psychiatric diagnosis of depressive disorder, which is rated at 30 percent, as well as various other physical disabilities. The treatment records relevant to the Veteran's participation in the SARRTP program show that the Veteran participated in both individual and group therpy but do not specifically not treatment for the service-connected depressive disorder. In May 2011, the Veteran underwent a QTC mental disorders examination in connection with a separate claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The examining QTC psychologist considered the Veteran's past and current psychiatric symptoms, diagnoses, and treatment and concluded that the Axis I diagnoses are depressive disorder and alcohol abuse in remission. The examiner opined that the multiple Axis I diagnoses are related and the secondary diagnosis does represent a progression of the primary diagnosis because the alcohol abuse was an attempt to self-medicate his depression. The May 2011 QTC medical opinion is based on an accurate psychiatric history and report of symptomatology and is, therefore, adequate. While the Veteran received treatment for substance-abuse related problems at a VA residential substance abuse program from July 2009 to September 2009 and is not service-connected for substance abuse, there is medical evidence of record that indicates that the Veteran has clinical diagnoses of both depressive disorder and alcohol abuse in remission. The May 2011 examiner concluded that the Veteran has concurrent or multiple Axis I diagnoses and specifically found that alcohol abuse was related to depressive disorder and was a progression of service-connected depressive disorder. It was concluded that alcohol use was an attempt to self-medicate depressive symptoms. Upon consideration of the May 2011 QTC medical opinion, the Board finds that a distinction of the effects of the Veteran's service-connected depressive disorder and the nonservice-connected substance abuse disorder is not possible. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The May 2011 VA examiner indicated that the Veteran had concurrent or multiple diagnoses of depressive disorder and alcohol abuse and the hospital treatment in 2009 was for the alcohol abuse which has been found to be concurrent with and related to the service-connected depressive disorder. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has met the criteria for a temporary total rating for depressive disorder based on treatment received in the SARRTP program from July 2009 to September 2009. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.29 (2012). The appeal is, therefore, granted. ORDER A temporary total rating based on hospitalization from July 2009 to September 2009 under 38 C.F.R. § 4.29 is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs