Citation Nr: 1338358 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-11 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date prior to January 2, 2007, for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation for PTSD. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for residuals of a right knee injury. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1967 to November 1970. This matter come before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for back and right knee injuries and granted a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation for PTSD, effective January 2, 2007. The Veteran submitted a Notice of Disagreement (NOD) with the effective date of the grant of a temporary total disability rating under 38 C.F.R. § 4.29 in November 2007, and timely perfected his appeal in April 2009. The Veteran also submitted a NOD for the denial of his claims of service connection for back and right knee injuries in March 2008, and timely perfected his appeal in October 2012. In an April 2013 decision, the Board remanded the issues of entitlement to a total disability rating based on individual unemployability (TDIU), service connection for erectile dysfunction (ED), and entitlement to an effective date prior to January 2, 2007, for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29 based on hospital treatment or observation, for further development. That development has been completed. Subsequently, in a September 2013 rating decision, the RO granted service connection for ED and entitlement to a TDIU. This decision constitutes a full grant of benefits on those issues. Therefore, the claims of a service connection for ED and entitlement to a TIDU are no longer on appeal. The issue of entitlement to an effective date prior to January 2, 2007, for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29 based on hospital treatment or observation remains on appeal before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. 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 issues on appeal. The issues of service connection for back and right knee injuries are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran entered into a VA PTSD treatment program on January 2, 2007 and was discharged on February 16, 2007. 2. The satisfactory and probative evidence of record demonstrates that the Veteran's PTSD did not necessitate hospital treatment or observation consistent with those providing the basis for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29 prior to January 2, 2007. CONCLUSION OF LAW The criteria for an assignment of an effective date prior to January 2, 2007, for the award of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation, have not been met. 38 U.S.C.A. §§ 1155 , 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 4.29 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, Courts have held, and VA's General Counsel has agreed, that where an underlying claim for benefits has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional notice and any defect in the notice is not prejudicial. 38 C.F.R. § 3.159(b)(3); See also Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). Additionally, inasmuch as the law, and not the evidence, is dispositive in this case, VA's duties to notify and assist claimants are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Accordingly, VA complied with the pertinent notification requirements and there is no prejudice to the Veteran to continue with adjudication of this claim. II. Earlier Effective Date Legal Criteria Statutory and regulatory provisions specify that unless otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If it is factually ascertainable that the disability increased within one year preceding the date of claim for the increased rating, the effective date of increased compensation will be the date the disability increased within that year. 38 C.F.R. § 3.400(o)(2). 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. 38 C.F.R. § 4.29. 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. 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). On these total ratings, the Department of Veterans Affairs regulations governing effective dates for increased benefits will control. 38 C.F.R. § 4.29(d). The total hospital rating if convalescence is required may be continued for periods of 1, 2, or 3 months in addition to the period provided in paragraph (a) of this section. 38 C.F.R. § 4.29(e). Extension of periods of 1, 2 or 3 months beyond the initial 3 months may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.29(f). 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). Analysis The Veteran contends that the effective date for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation for PTSD should be prior to January 2, 2007, stating that such should be awarded from January 1, 2007, as he arrived to begin his treatment on that day, but the program did not begin until the second because of the holiday. VAMC records show that the Veteran was admitted to a VA PTSD treatment program on January 2, 2007 and was discharged on February 16, 2007. In April 2007, the Veteran filed a claim for a total temporary disability rating under 38 C.F.R. § 4.29. In an August 2007 rating decision, the RO granted a total temporary disability rating under 38 C.F.R. § 4.29, effective date January 2, 2007. The Board observes that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran filed his claim for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation for PTSD, on April 30, 2007. There is no evidence of record indicating that an earlier formal or informal claim had been filed for such. In addition, prior to the January 2, 2007 date awarded for the temporary total disability rating under 38 C.F.R. § 4.29 based on hospitalization over 21 days, the medical evidence of record does not demonstrates that the Veteran was admitted for hospital treatment for his PTSD any earlier than January 2, 2007. As noted above, the increased rating will be effective the first day of continuous hospitalization. 38 C.F.R. § 4.29(a). Accordingly, as the Veteran's first day of hospitalization was recorded as January 2, 2007, the Board finds that the preponderance of the evidence is against the claim for an effective date prior to January 2, 2007, for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Lastly, the Board reiterates what was already discussed by the RO in the February 2009 Statement of the Case; based on the commencement of payment, VA regulations note that payment of monetary benefits based on original, reopened, or increased awards of compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective which results of the commencement of payment. Therefore, the temporary evaluation of January 2, 2007 with a payment date of February 1, 2007 was in order. ORDER Entitlement to an effective date prior to January 2, 2007, for the assignment of a temporary total disability rating under 38 C.F.R. § 4.29, based on hospital treatment or observation for PTSD is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that his back and right knee conditions are a result of an in-service boating accident in Vietnam. He stated that he was medically evacuated to Saigon Hospital in March or April 1969. The Veteran's service treatment records contain a July 1969 casualty report, which noted that the Veteran was driving an airboat and hit Cau Bong Bridge. The diagnosis was a bruised right leg. The Veteran submitted private x-ray reports of his lumbar spine. September 2004 test results showed degenerative disc disease at L5-S1; spondylolisthesis; and probably old compression fractures involving T11 and T12 vertebral bodies. The Veteran was afforded a general VA examination in August 2008. The Veteran was diagnosed with degenerative joint disease (DJD) of the right knee and lumbar spine. However, etiology opinions in reference to his back and right knee disabilities were not rendered at that time. Without further clarification, the Board is without medical expertise to determine whether the onset and/or etiology of the Veteran's back and/or right knee conditions are related to the Veteran's active military service, to include an in-service air boat accident. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, VA examination and opinions should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A remand is also necessary to obtain outstanding VA and private medical records. The record contains private September and October 2004 lumbar spine x-ray records. Additionally, the claims file contains VA treatment records showing treatment for his claimed disabilities through September 2009. It is unclear if the Veteran continued to receive either VA or private treatment for his back and right knee conditions after those times. Because it appears that there may be outstanding VA and private medical records that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain all outstanding VA treatment records from September 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his back and right knee disabilities. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) Schedule the Veteran for a VA examination to determine whether any of his current back or right knee disabilities, to include DJD, are related to the Veteran's active service. The claims file must be made available to and reviewed by the examiner. All necessary studies should be performed, and all findings should be reported in detail. The examiner should answer the following: A. Diagnose the Veteran's current back and right knee disabilities. B. For each back and right knee diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current diagnosed condition had its onset in service or is related to any in-service disease, event, or injury, to include a boat accident in Vietnam. In rendering these opinions, the examiner must review the Veteran's service treatment records (July 1969 casualty report), private treatment records, VA treatment records, the August 2008 VA examination report, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, the AMC should readjudicate the Veteran's claims. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs