Citation Nr: 1339443 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-34 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29 (2013) from November 14, 2007 to July 9, 2008. REPRESENTATION Appellant represented by: Bonnie Glatzer, Attorney at Law ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The entire claims file has been reviewed in this case, to include the portion contained in the electronic Virtual VA system. FINDINGS OF FACT 1. For the time period of November 14, 2007 to May 6, 2008, the Veteran was not in receipt of service-connected benefits for any disability, and thus does not meet the basic legal criteria for a temporary total disability rating. 2. For the time period from May 7, 2008 to July 9, 2008, the Veteran resided at a VA domiciliary on the basis that he was a homeless veteran. During this residence he did not require hospital treatment in excess of 21 days for any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29 have not been 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 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). The RO provided a notice letter to the Veteran in July 2009, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the July 2009 letter. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. VA treatment records dated from 2007 to 2011 are associated with the claims folder. There is no identified relevant evidence that has not been obtained for review. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claim and VA met its duty to assist the Veteran. Legal Criteria-Total Temporary Ratings 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. 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) (2013). Analysis The Veteran contends that he was hospitalized at a VA domiciliary for treatment of service-connected PTSD from November 14, 2007 to July 9, 2008, and therefore he should be awarded a temporary 100 percent rating for this time period. For the time period of November 14, 2007 to May 6, 2008, the Veteran was not in receipt of service-connected benefits for any disability, and thus does not meet the basic legal criteria for a temporary total disability rating. Review of the record shows that service connection for post traumatic stress disorder (PTSD) was granted in a November 2008 rating decision. A 30 percent rating was assigned from May 7, 2008, the date of receipt of his original disability claim. An August 2010 rating decision assigned a 70 percent rating from April 28, 2010. A June 2011 rating decision granted entitlement to a total rating based upon individual unemployability due to service-connected disabilities from April 28, 2010. With respect to temporary total disability ratings, the 21 day required hospitalization must be for a service-connected disability. See 38 C.F.R. § 4.29. Accordingly, there is no legal basis for the allowance of a temporary 100 percent rating for the time period of November 14, 2007 to May 6, 2008, and such a claim must be denied. Regarding the time period of May 7, 2008 to July 9, 2008, the Veteran had applied for admission to a VA homeless program that included residence at a VA domiciliary facility, based on his status as a homeless veteran, in October 2007. Review of VA treatment records show that on October 29, 2007, the Veteran underwent a nursing screening for a housing referral and psychiatric evaluation. An October 29, 2007 VA mental health assessment indicates that the Veteran stated that he needed shelter and help with anger issues. The Veteran was referred to a veterans program and housing. On November 9, 2007, the Veteran signed a Domiciliary Day Treatment Program Contract with VA. The Veteran was accepted for admission to the domiciliary on November 14, 2007. The contract indicates that "Your admission to the Domiciliary will provide you with the therapeutic care and support services designed to enable you to improve your quality of life, achieve functional independence and health, with the primary objective of restoring you to community life." A November 16, 2007 VA psychology assessment indicates that the Veteran stated that the main reason he came to the domiciliary is that he was homeless. He also reported that since he came back from Iraq, he had dreams of hurting people and his last significant event was a domestic violence incident with his girlfriend that led to him being incarcerated. A July 17, 2008 discharge summary indicates that the Veteran was discharged from the domiciliary on July 9, 2008 after a confrontation with another veteran. His diagnoses upon discharge, in pertinent part, included PTSD and alcohol dependence in remission in a controlled environment. The summary indicates that during his stay, he was admitted to the combat trauma team and participated in group sessions. 38 C.F.R. § 4.29 permits a temporary total compensation rating when a service-connected disability has required continuous hospital treatment for a period in excess of 21 days. The evidence shows that his stay at the VA domiciliary was based on his status of being a homeless veteran. During his residence at the VA domiciliary, he received care for the service-connected PTSD. The VA treatment records show that the Veteran underwent mental health and psychological assessments and he participated in group sessions for combat veterans. However, there is no indication in the medical evidence that the service-connected PTSD required inpatient care. The VA treatment records do not indicate that the Veteran's treatment for PTSD required inpatient stay if the Veteran had not been a resident at the domiciliary. There is no medical evidence or objective opinion of record that shows the Veteran required continuous hospital treatment or inpatient care for more than 21 days based on his PTSD from May 7, 2008 to July 9, 2008. The Veteran cites to Mangham v. Shinseki, 23 Vet. App. 284 (2011), arguing that the case stands for the proposition that VA domiciliary care equals VA hospitalization for purposes of applying 38 C.F.R. § 4.29. Such argument is not only unpersuasive; it is factually and legally incorrect. In Mangham, the United States Court of Appeals ("Court") considered whether VA domiciliary care qualified as "VA treatment or care" in a claim for compensation under 38 U.S.C.A. § 1151. The Court, however, did not find that VA domiciliary care was the equivalent of VA hospitalization, nor did the Court address the definition of domiciliary care in the context of a claim for a temporary total evaluation under 38 C.F.R. § 4.29. See also Bartlett v. Shinseki, 24 Vet. App. 328 (2011) (discussing the applicability of compensation under 38 U.S.C.A. § 1151 in non-traditional VA treatment settings.) Thus, the Board finds that the preponderance of the evidence is against the award of a temporary total rating pursuant to 38 C.F.R. § 4.29 due to hospitalization for treatment of a service-connected disability. As a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The appeal is denied. ORDER Entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29 from November 14, 2007 to July 9, 2008 is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs