Citation Nr: 1334510 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-01 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a temporary total evaluation due to hospital treatment in excess of 21 days for a service-connected condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days. The Veteran's representative submitted an Informal Hearing Presentation in August 2013 that raises a new claim for service connection for alcohol dependence as secondary to the service-connected posttraumatic stress disorder. This issue has not been adjudicated by the RO, and the Board therefore does not have jurisdiction to consider it. Accordingly, the issue of secondary service connection for alcohol dependence is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PTSD) and for concussive head trauma. 2. From September 24, 2007, through November 5, 2007, the Veteran received VA residential rehabilitation treatment for substance abuse. 3. From November 8, 2007, to March 31, 2008, while the Veteran was a VA domiciliary resident, he received VA treatment for substance abuse and health issues; thereafter he entered a day hospitalization program for treatment of symptoms related to PTSD, paranoia and psychosis. 4. Inpatient treatment for a service-connected disability for a period of 21 consecutive days was not provided. CONCLUSION OF LAW The criteria for a temporary total evaluation due to hospital treatment in excess of 21 days are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.29 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Complete notification in this case was provided to the Veteran by a letter in March 2008, which informed him of the elements required to establish entitlement to a temporary total rating and also informed him of the respective responsibilities of VA and a claimant in obtaining such evidence. The Veteran had ample opportunity to respond prior to issuance of the May 2008 rating decision on appeal. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing 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 RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained treatment records pertaining to the period of hospitalization in question, as well as relevant VA treatment records before and after that hospitalization. The Veteran was advised of his right to a hearing before the Board but he declined such a hearing. The Veteran's representative submitted an Informal Hearing Presentation in August 2013 asserting that the Board is required under the Duty to Assist to obtain a medical opinion on the issue of whether the Veteran's alcohol dependence is directly related to his service-connected PTSD. The Board disagrees. The issue of secondary service connection for alcohol or other substance abuse issues has not been adjudicated by the RO and is not before the Board. The issue before the Board is the narrow question of whether treatment during a specific period was for a service-connected disability versus a nonservice-connected disorder; resolution of this issue requires retrospective review of the relevant treatment record but does not require a current medical examination or medical review opinion. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Applicable Legal Criteria 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. Subject to the provisions of paragraphs (d), (e), and (f) of this section 4.29 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. 38 C.F.R. § 4.29(a). 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(b). The assignment of a total disability rating on the basis of hospital treatment or observation will not preclude the assignment of a total disability rating otherwise in order under other provisions of the rating schedule, and consideration will be given to the propriety of such a rating in all instances and to the propriety of its continuance after discharge. Particular attention, with a view to proper rating under the rating schedule, is to be given to the claims of veterans discharged from hospital, regardless of length of hospitalization, with indications on the final summary of expected confinement to bed or house, or to inability to work with requirement of frequent care of physician or nurse at home. 38 C.F.R. § 4.29(c). 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, Compensation and Pension Service, under § 3.321(b)(1) of this chapter. 38 C.F.R. § 4.29(g). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence During the period September 24 through November 5, 2007, the Veteran received VA residential rehabilitation for alcohol and cocaine dependence. The discharge diagnosis relating to this period is alcohol dependence, cannabis dependence, cocaine dependence and opiate dependence. The Veteran has not asserted a claim for compensation for this period. A VA Mental Health Clinic (MHC) admission note dated November 8, 2007, states the Veteran was being admitted "for continuation of care for PTSD, hypertension, cocaine and alcohol dependence." However, an MHC admission evaluation dated the same day states, "patient is admitted to [Ward] 42A for his homelessness and also to cont[inue] RTRP rehab[ilitation] aftercare for his alcohol dependence and cocaine dependence." The purpose of the admission to Ward 42A was characterized as "for con[tinuation] of rehab[ilitation] and to find a job and find a place to live." The short-term goal was cited as "stabilization of his substance abuse with rehab[ilitation]. Stabilization of his HTN [hypertension] with diet and med[ication]s, stabilization of headaches first with control of HTN and the evoluate [sic], stabilization of his arthritis with meds." The long-term goal was cited as "for rehabilitation." The admission diagnoses were alcohol dependence, cannabis dependence, cocaine dependence and opiate dependence. An MHC consultation dated November 21, 2007, states the Veteran was a resident in the VA domiciliary unit and was complaining of symptoms related to having been hit on the head with a baseball bat in service. The Veteran complained of intrusive thoughts, nightmares, exposure distress with psychological reaction, avoidance of thoughts and feelings, anhedonia, detachment/emotional numbing, sense of foreshortened future, sleep difficulty, concentration difficulty and hypervigilance. He was referred to an outpatient clinician at the Center for Stress Reduction (CSR) for complete assessment of mental health needs. The Veteran participated in group counseling on December 10, 2007. The session is categorized as Week 1 of 6 for "recovery skills." There was some discussion regarding anxiety and mood disorders; there is nothing in the treatment note that shows a relationship to PTSD. The Veteran was interviewed by a CSR psychology technician on January 29, 2008, for the purpose determining whether the Veteran would benefit from therapy, based on his memory deficits and his paranoid ideation. The clinician stated he or she would see the Veteran weekly to monitor and assist with the Veteran's PTSD symptoms. A note by the Veteran's case manager, dated January 31, 2008, states the Veteran had been admitted to the VA domiciliary unit in November 2007 to continue treatment and to get assistance with housing and educational training. Current psychiatric diagnoses (Axis I) were PTSD, paranoid personality disorder, cocaine and alcohol dependence. Current psychosocial and environmental problems (Axis IV) were homelessness and being unemployed. The Veteran's planned discharge date was noted as May 8, 2008. The Veteran had a scheduled individual interview with his CSR psychology technician on February 4, 2008. The discussion generally addressed the Veteran's feelings of paranoia and irrational thinking. The clinician again indicated a plan to see the Veteran weekly to monitor and assist with PTSD symptoms. On the same day, the Veteran participated in group therapy devoted to sleep hygiene. Treatment notes dated on February 6, 2008, are devoted to vocational rehabilitation, and treatment notes dated on February 8 are devoted to group counseling regarding substance abuse. The Veteran had a scheduled individual interview with his CSR psychology technician on February 12, 2008. The discussion generally addressed the Veteran's personal hygiene and feelings of depression and paranoia. On the same day (February 12) the Veteran was interviewed by a psychologist, based on the request of the CSR psychology technician who became alarmed because the Veteran had made vague references to having homicidal thoughts about another resident in the domicile. The Veteran denied actual homicidal intent, but the psychologist expressed concern the Veteran was not taking his medication as prescribed. The Veteran was interviewed by a VA psychiatrist on February 13, 2008, and found to not represent an imminent danger to himself or anyone else. The Veteran had a scheduled individual interview with his CSR psychology technician on February 26, 2008, during which he expressed anxiety about his imminent discharge from the domiciliary unit; he endorsed being afraid of going back into society and stated he would prefer to stay in the domicile. The clinician stated that the Veteran's mental health would be better served in outpatient psychiatry, since his primary mental health problem (paranoid personality) was not associated with PTSD. The clinician stated that paranoia was significantly expressed in every session and was overwhelming all other symptoms. The clinician stated that in addition to PTSD the Veteran should be diagnosed with rule out paranoid personality disorder. On February 28, 2008, the Veteran was interviewed by a VA social science specialist, who informed the Veteran that by consensus of his treatment team the primary focus of his mental health treatment should not be on PTSD. The Veteran was referred for treatment at outpatient psychiatry and possible inclusion in a day hospital program. The file includes a medication management note executed on March 7, 2008, by the Veteran's VA psychiatrist. The Veteran endorsed continued paranoid thinking. The psychiatrist diagnosed alcohol dependence, cocaine dependence and cannabis dependence in sustained partial remission; nicotine dependence; and, PTSD (Axis I). She also diagnosed paranoid personality disorder with antisocial features (Axis II) and homelessness/unemployment (Axis IV). The psychiatrist adjusted the Veteran's medications. Also on March 7 the Veteran participated in group counseling for substance abuse issues. An MHC assessment/evaluation note, dated March 10, 2008, shows the Veteran was interviewed by a VA psychologist for assessment regarding acceptance into the day hospital program. The psychiatrist noted the Veteran had current diagnosed psychiatric disorder (recurrent major depressive disorder, PTSD and alcohol in early partial remission) and otherwise met the criteria for day hospital treatment (requires therapeutic intervention; not inpatient but requires daily monitoring and support; medically stable; no pending legal issues that would prevent attendance; no active substance use; able to tolerate group setting; and, not at imminent risk for suicide or homicide). The psychiatrist stated the Veteran had been provisionally accepted for the day hospital program and that the starting date for such program would be discussed with the domiciliary staff. On March 18, 2008, the Veteran was accepted into the day hospital program. On March 19, the Veteran asked to defer the program until the first week in April, so his discharge was scheduled for March 31. An MHC note by the Veteran's VA psychiatrist dated March 21, 2008, shows the Veteran had been compliant with medications, with some improvement in his symptoms. The psychiatrist noted an adjustment in the Veteran's prescription medications to optimize their effects. The psychiatrist's diagnosis was unchanged from that recorded on March 7. The Veteran had a group therapy session on March 31, 2008. Per the treatment note, the Veteran had been discharged from the CSR program on March 18 and began the day program on March 31, although he would continue to reside in the domicile. The diagnosis listed was psychosis NOS. Thereafter, VA MHC treatment notes show the Veteran received group therapy on April 3 for PTSD/psychosis NOS/mood disorder NOS; the treatment note clearly shows the Veteran was in a "day hospital" environment. A VA MHC interdisciplinary intake note dated April 4, 2008, states the Veteran had been admitted to a "partial hospitalization" program to improve his depression. The anticipated discharge date was April 25. The treatment plan was linked to diagnosed psychosis NOS, although the Veteran was also currently diagnosed with recurrent MDD, PTSD, depression and alcohol dependence in early full remission (Axis I); rule out paranoid personality disorder and antisocial personality traits (Axis II); and, homeless, unemployed and symptoms of mental illness (Axis IV). The Veteran had group "anger management" therapy on April 7, 2008 (diagnosed psychosis NOS and schizophrenia). He also had group therapy for stress reduction on April 9; for medication management on April 11; for stress and relaxation on April 14; for "hearing voices" on April 17; for "recovery" on April 21; for anger management on April 23; and, for medication and symptoms management" on April 25; the diagnosis for all these sessions was psychosis NOS. A VA MHC outpatient treatment note dating from April 28, 2008, states the Veteran had been admitted to the Recovery Resource Center, having graduated from the day hospital program on April 25. He was still living in the VA domiciliary unit. In May 2008 the RO issued the rating decision on appeal, which denied entitlement to a temporary total evaluation based on a determination that the hospitalization in question was not for treatment of a service-connected disability. The Veteran's Notice of Disagreement (NOD) in May 2008 asserting that his VA psychiatrist had admitted him for inpatient treatment because his PTSD symptoms had gotten out of control, which caused him to start drinking alcohol. The Veteran stated he was admitted to get his PTSD medications back in order and to address his alcoholism and drug addiction issues. The Veteran's VA treatment record includes a notation by his attending VA psychiatrist dated in December 2009, stating the Veteran had asked the psychiatrist for a letter stating his alcoholism was a direct result of his PTSD, but the psychiatrist was unable to comply with that request. The psychiatrist noted that funds had been withheld during the Veteran's hospitalization in 2007, and the Veteran was seeking return of the money. However, all hospitalizations in the last 9 years were primarily for alcohol dependence. In his Substantive Appeal, received in January 2010, the Veteran reiterated the arguments he had made in his NOD. He added the statement that he had to get his PTSD medications under control, but this could not be done until he completed the 28-day drug and alcohol program. Thus, he alleges his admission had been "mainly for my PTSD." The Veteran had a VA compensation and pension (C&P) examination in January 2010, performed in conjunction with his request for higher evaluation for his service-connected PTSD. The examiner noted by history that the Veteran had been treated briefly at CSR in 2008 but was discharged from that program secondary to paranoia, which was felt to be more prominent than his PTSD symptoms. After an assessment and team evaluation, recommendations were made to have him followed up at the outpatient MHC rather than the CSR, and he had accordingly been treated by an MHC psychiatrist since 2009. Analysis Review of the evidence above shows the Veteran received residential treatment for substance abuse rehabilitation during the period September 24, 2007, through November 5, 2007. Nothing of record shows the Veteran was provided treatment for psychiatric problems other than substance abuse during this period. Turning to the period beginning on November 8, 2007, the Veteran was characterized in multiple entries as being a domiciliary resident due to his situation of being homeless and unemployed, and in fact he appears to have continued to be domiciliary resident for some time after "day hospitalization" commenced. However, the record does not reflect that the Veteran was receiving inpatient care for psychiatric problems versus being a dormitory resident. Careful day-by-day review of the treatment provided to the Veteran during the period from November 8, 2007, to March 31, 2008, shows that he received only incidental treatment for psychiatric issues other than substance abuse. There were periodic adjustments to the Veteran's medication, and he was interviewed weekly by his CRS provider to monitor his PTSD symptoms, but the clear intent of the treatment, as documented in the treatment plan, was substance abuse rehabilitation. This is consistent with the statement by the VA psychiatrist in December 2009. In sum, the medical evidence of record simply does not show that the Veteran's service-connected disabilities "required VA hospital treatment" for a continuous period of 21 days during the period claimed, as required by in 38 C.F.R. § 4.29. In regard to the period from March 31, 2008, the evidence of record shows the Veteran entered day hospitalization status on that date and that he thereafter received outpatient treatment for psychiatric symptoms. Such does not reflect inpatient treatment for at least 21 days, and his stay at the domiciliary was as a resident, not an inpatient. In his NOD his Substantive Appeal, as well as an April 2011 letter to his United States Congressman, the Veteran asserted that the real reason for his treatment during the period under review was to get his medications for PTSD regulated; thus, the treatment provided was actually for the purpose of treating his PTSD. However, whereas the Veteran had multiple coexisting psychiatric disorders before, during and after the period under review, the nature and intent of a treatment plan is a complex medical question not within the competence of lay evidence. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's assertions in his lay evidence, as cited above, are also inconsistent with the contemporaneous medical record, which does not list regulation of psychiatric medications as a treatment goal, and are contradicted by the December 2009 treatment note by the Veteran's VA psychiatrist stating that all the Veteran's hospitalizations in the past nine years had been "primarily for alcohol dependence." Based on the evidence and analysis above, the Board finds the Veteran did not have a period of hospital treatment in excess of 21 days for a service-connected condition. Accordingly, the criteria for compensation under 38 C.F.R. § 4.29 are not met, and the claim is denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54-55. ORDER A temporary total evaluation because of hospital treatment in excess of 21 days is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs