Citation Nr: 1340484 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 07-22 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a temporary total rating following a service-connected hemorrhoidectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1990. This matter arises to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part denied a compensable rating for hemorrhoids. In August 2013, the Board granted an initial 10 percent schedular rating for hemorrhoids for the entire appeal period and also determined that an implied claim for a temporary total rating had been raised by the record. The Board assumed jurisdiction over the implied temporary total rating issue by virtue of a perfected appeal for a greater hemorrhoid rating. AB v. Brown, 6 Vet. App. 35, 38 (1993) (a Veteran is presumed to seek the maximum benefit available); also see Douglas v Derwinski, 2 Vet. App. 435, 439 (1992) (VA's non-adversarial system and its statutory duty to assist must, "...include issues raised in all documents or oral testimony submitted..."). In August 2013, the Board remanded the temporary total rating claim for development. In its August 2013 decision, the Board also noted that secondary service connection issues had been raised by the record, but had not been adjudicated by the RO. These issues are: frequent rectal prolapse episodes, urinary retention with a need for catheterization, a sex drive-related impairment, rectal surgery scars, pruritus ani, slight narrowing of the rectal vault, and fecal leakage due to impaired sphincter control. Because the Board does not have jurisdiction over these potential claims and because neither the claims files nor Virtual VA reflects that VA has taken any action on these issues to date, they are again referred for appropriate action. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran underwent a service-connected hemorrhoidectomy on October 28, 2008. 2. Postoperative complications that precluded working continued for 30 days after the surgery. CONCLUSION OF LAW The criteria for a temporary total rating effective October 28 through November 30, 2008, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in September 2013. Because the claim is not a claim for service connection, the notice requirements will vary from that set forth by the United States Court of Appeals for Veterans Claims (hereinafter: the Court) in Dingess/Hartman. The VA notice letter does address the necessary notice elements for temporary total rating claim and was sent prior to the October 2013 supplemental statement of the case that discusses the merits of the issue. VA's duty to assist the Veteran in the development of the claim has also been met. All pertinent VA surgery and treatment records have been obtained and associated with the file. Temporary Total Convalescence Rating Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. A temporary total convalescent rating will be assigned following hospital discharge or outpatient release, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release if the treatment of a service-connected disability resulted 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) (2013). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran underwent a service-connected hemorrhoidectomy on October 28, 2008. The surgery discharge instructions state, among other precautions to be taken, that the Veteran was to "Sit in a warm tub of water (Sitz-bath) four times a day." The Veteran was released from the VA Medical Center recovery room on the same day as the surgery. A VA Nursing Treatment Plan Note, dated October 28, 2008, states, "Post Op phase begins when the patient is transferred from surgery to a post anesthesia care area and ends when the patient has recovered from the surgical intervention. Following the Post Op phase, the report further notes that it is desired that the patient be "...without signs and symptoms of infection or postoperative complications." One week after surgery, on November 5, 2008, a VA "Surgery Inpatient Note" mentions that two days after surgery the Veteran developed urinary retention that required insertion of a Foley catheter at an outside hospital. The VA physician removed the Foley catheter on November 5. These reports suggest that postoperative complications had indeed arisen. A November 14, 2008, VA addendum report indicates that the Veteran asked for an extended convalescence period from work due to continued rectal pain. He supplied his work fax number. The VA program assistant then made the following addendum entry: STATUS: COMPLETED. Because there is no indication that the Veteran's request for an extension of convalescence was refused, the Board concludes that a VA health-care provider did intend to approve an extension of the Veteran's postoperative convalescence period. A November 29, 2008, VA primary care note mentions that on November 17th additional surgery was recommended to dilate an anal stricture. The report actually states that the recommendation was made on December 17th, which is erroneous, as the report itself is dated November 29th. This report argues for the conclusion that postoperative complications did continue to manifest on November 17th, the 20th postoperative day. The next VA report is dated December 3, 2008. It notes continued rectal pains. A December 8, 2008, addendum report notes that the Veteran needed anesthesia for dilation of a tight anal sphincter, which was caused by or due to a complication secondary to the October 28th surgery. In November 2010, the Veteran wrote a letter to VA in which he reported that following the October 2008 hemorrhoidectomy, he was out of work for about 30 days. He mentioned that as a Postal Service letter carrier during those days, he did not have full access to a toilet when his body dictated. Resolving reasonable doubt on the matter in favor of the Veteran, from the facts above, it is reasonable to conclude that VA service-connected surgery on October 28, 2008, did result in postoperative complications that required continued treatment for a month. The record strongly suggests that on 2nd and fifth postoperative days, additional medical treatment was necessary. On the 17th post-operative day (November 14, 2008) VA gave the Veteran a release-from-work slip due to continued post-surgery residuals and the Veteran later reported that he could not work for about 30 days following surgery. Because: (1) the Veteran has competently reported that he could not work for about 30 days; (2) his medical records substantiate that postoperative complications continued for over a month after surgery; (3) his physician instructed him to use a Sitz-bath four times a day during recovery, which would be difficult to comply with if he were also working: and, (4) on the 17th day after surgery, additional time off work appears to have been approved by VA, the criteria for one-month of temporary total rating, from October 28 through November 30, 2008, are more nearly approximated. The criteria for an extension of the temporary total rating past November 30, 2008, are not met or more nearly approximated because more than one month of convalescence was not claimed or otherwise shown to be needed and severe postoperative residuals such as incompletely healed surgical wounds or the necessity for house confinement, are not shown after November 30, 2008. ORDER A temporary total rating is granted for the period from October 28, 2008, through November 30, 2008, subject to the laws and regulations concerning the payment of monetary benefits. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs