Citation Nr: 1341506 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-21 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a temporary total disability rating for hospitalization in excess of 21 days for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to December 1986. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an October 2013 Written Brief Presentation, received at VA in December 2013, the Veteran's representative argued that this claim should be remanded so that the Veteran may have a chance to perfect an appeal to his claim of entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran's representative notes that an email correspondence in the claims file shows a notice of disagreement was received on May 3, 2012, but is not in the claims file. The Board agrees that there is no a copy of a May 3, 2012 notice of disagreement. However, a notification letter was sent to the Veteran, also dated on May 3, 2012, informed him his notice of disagreement was received. Thereafter, a statement of the case was issued in June 2013. There is no record of a VA Substantive Appeal (VA Form 9) having been submitted to perfect an appeal of this issue to the Board. Accordingly, this matter is referred to the agency of original jurisdiction for appropriate action. FINDING OF FACT The Veteran has not required hospital treatment or observation for a service-connected disability in excess of 21 days. CONCLUSION OF LAW The criteria for a temporary total evaluation due to hospital treatment in excess of 21 days for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.29 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that full notice regarding total temporary ratings was not provided to the Veteran prior to the initial adjudication of the claim. The Board finds that any defect in terms of notice has not been harmful to the Veteran. Indeed, throughout the current appeal, the Veteran has exhibited his actual awareness of the type of evidence necessary to substantiate this issue. The purposes of the notice requirements have not been frustrated, and any error in failing to provide additional notice has not affected the essential fairness of the adjudication process because the Veteran had actual knowledge of what information and evidence is needed to establish both of the issues on appeal. Moreover, he has not alleged any VCAA notice error. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party attacking the agency's decision, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of his claims. Thus, absent this pleading or showing, the duty to notify has been satisfied. The Board finds VA has satisfied its duty to assist the Veteran in the development of the issue on appeal. His in-service and pertinent post-service treatment reports are of record. A VA examination would not assist in the rendering of a determination of the Veteran's temporary total rating claim because the objective findings shown on any such evaluation are not relevant to the question of whether the Veteran was hospitalized for a service-connected disability for a period in excess of 21 days. Thus, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); and, Quartuccio v. Principi, supra. Analysis The Veteran asserts he is entitled to a temporary total rating because he received treatment for his PTSD with the Mental Health Addictions and PTSD program (MAPS) at the Tuscaloosa VA medical center, from July 16, 2007, to August 20, 2007. Service connection for PTSD was granted effective from January 26, 2007. 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, 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). In support of his claim, the Veteran submitted an October 2007 letter from a registered nurse with the Mental Health Addictions and Posttraumatic Stress Disorder (MAPS) program, which indicated that the Veteran completed the MAPS program on August 20, 2007. VA treatment records do not show that the Veteran was ever hospitalized for the purpose of receiving treatment for PTSD, or any other service-connected disability. Review of his VA treatment records show he began receiving treatment for PTSD in 2007. He was referred for participation in the MAPS program in July 2007. Following an initial screening on July 10, 2007, he was accepted into enrollment in the MAPS Clinic with treatment to begin on July 16, 2007. A VA treatment note dated on July 16, 2007, shows the Veteran was to participate one day a week, on Mondays, in the PTSD Education and Symptom Management Program. This consisted of several therapeutic and educational sessions, including group sessions. A July 17, 2007, VA treatment record shows that it was recommended the Veteran be involved in a full range of groups and classes within the range of his work schedule. The Board finds that these records indicate that the PTSD treatment was not provided on a continuous in-patient basis. There is no indication that the Veteran was enrolled in a PTSD Residential Rehabilitation Program (PRRP) or other residential program. In January 2012, the Veteran was scheduled for a VA examination to assess the severity of his PTSD. During his examination, the examiner noted the Veteran's treatment consisted of 30-minute nurse practitioner appointments. He was not receiving medication management for his PTSD since he declined psychotropic medications. There was no mention of prior hospitalizations for treatment for his PTSD at any point during this VA examination. When considering the Veteran's VA treatment records and the report of the January 2012 VA compensation examination as a whole, there is simply no indication that his PTSD treatment was ever conducted on an in-patient basis requiring hospitalization in excess of 21 days. In fact, the notations in his records indicate that the Veteran was still working while he was attending therapy in the MAPS Program from July 16, 2007, to August 20, 2007. There is no evidence that he had in-patient treatment for more than 21 days for any service-connected disability since 2007. Therefore, without a showing that the Veteran received in-patient treatment for his PTSD or any other service-connected disability, a temporary total disability rating is not warranted. ORDER A temporary total disability rating because of hospital treatment in excess of 21 days is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs