Citation Nr: 1343155 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-08 058A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2012) for heart attack related disability, claimed to have resulted from VA treatment. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for a psychiatric disability, claimed to have resulted from VA treatment. 4. Entitlement to a temporary total rating for a period of hospitalization in April 2010. 5. Entitlement to a temporary total rating for convalescence following a period of hospitalization in April 2010. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 17, 1975 to November 6, 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2010 and April 2012 rating decisions of the St. Petersburg, Florida VA Regional Office (RO). The Veteran's claims were previously before the Board in March 2013, when they were remanded for additional development of the record. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. [This appeal is processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of an electronic record.] Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's low back disability was initially manifested many years after, and is not shown to be related to, his service. 2. The Veteran is not shown to have additional heart attack related disability resulting from VA treatment in April 2010. 3. The Veteran is not shown to have additional psychiatric disability as a result of VA treatment. 4. The Veteran was not hospitalized for treatment of a service-connected disability in April 2010. 5. The Veteran does not have any service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. § 3.303(2013). 2. The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 are not met for a heart attack claimed to be due to VA treatment in April 2010. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). 3. The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 are not met for a psychiatric disability claimed to be due to VA treatment. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). 4. A legal criterion for a temporary total rating under 38 C.F.R. § 4.29 is not met. 38 C.F.R. § 4.29 (2013). 5. A legal criterion for a temporary total rating under 38 C.F.R. § 4.30 is not met. 38 C.F.R. § 4.29 (2013). 6. A legal criterion for a TIDU rating is not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the claims seeking service connection and compensation under 38 U.S.C.A. § 1151. There are some claims to which VCAA does not apply, among them claims where a threshold legal criterion is not met, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As is explained in greater detail below, that is the situation with the claims for benefits under 38 C.F.R. §§ 4.16, 4.29 and 4.30 (no notice or assistance to the Veteran would enable him to substantiate such claims). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 VCAA notice 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). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. Letters dated March and July 2009, and August and September 2011 explained the evidence VA was responsible for providing and the evidence the Veteran was responsible for providing. The two most recent letters included the necessary information regarding compensation under 38 U.S.C.A. § 1151. The letters also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent postservice treatment records have been secured. He has been afforded a VA examination to assess his low back disability. He has not identified any pertinet evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence in the record shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection for a Low Back Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The Veteran submitted a claim for service connection for a low back disability in January 2009. He reported a low back injury at Ft. Jackson in 1976. VA outpatient treatment records have been associated with the claims folder. Low back pain was noted on a problem list in January 2009. The findings on a whole body scan in January 2009 were consistent with osteoarthritic changes in the lumbosacral spine. He was seen the following month for evaluation and care of chronic medical problems including back pain. He stated his low back pain had been ongoing for six years, and had started in the military. In June 2009, he complained of low back pain with radiation and numbness to the left lower extremity for two years. He stated his low back pain had been ongoing since he fell in service. On VA spine examination in November 2009, the Veteran reported the onset of his low back pain to be in 1975 when he fell approximately six feet from a bunk and injured the lumbar spine. He noted his next episode of pain was in 2006. He stated he had no episodes of pain between service and 2006, noting that he woke up in 2006 with pain in his back. There was no history of any additional trauma to the back. The examiner reviewed the claims folder and summarized the records. He noted there was evidence in the medical records that the Veteran was seen in October 1975 for low back pain after marching. The examiner concluded it was less likely as not that the Veteran's low back disorder is related to service. His rationale was based on his clinical experience and that there was no documentation of the Veteran's treatment for his lumbar spine condition following his discharge from service. He noted the lapse of time between the Veteran's separation from service and his next episode of pain in 2006. He indicated that this long interval between service and the current complaints weighed against a nexus between the two. The Veteran that during service he fell from a bunk and injured his low back. He claims that for many years during the intervening period he was treated by a chiropractor for his low back problems. In essence, he maintains his low back condition had its onset in service, and his symptoms have continued since his separation from service. The available service records do not show any treatment for low back complaints. When the Veteran was examined by the VA in November 2009 (after he filed a claim seeking service connection earlier that year), the examiner indicated there were notes to the effect that the veteran was seen for back pain in October 1975. There are numerous inconsistencies in the Veteran's accounts of his back injury and its subsequent treatment. Various VA outpatient treatment records suggest that the Veteran stated his low back disability was present since service. However, on November 2006 VA spine examination, the Veteran denied having any low back problems for more than 30 years following his discharge from service. This is inconsistent with his reports of receiving treatment for low back problems since 1975. The Veteran has acknowledged he attempted to obtain records from a provider who reportedly treated him, but that provider had died and the treatment records are unavailable. The Board also notes that while the Veteran insists he fell from a bunk, the only reference in the record to any treatment for low back complaints in service was regarding complaints following marching, not a fall. Furthermore, the Veteran has been providing inconsistent accounts of his alleged back treatment in service. In his January 2010 notice of disagreement, the Veteran claimed he was escorted to sick call, treated and diagnosed. Another January 2010 statement shows that the Veteran claimed his drill sergeant refused to take him to the hospital after the fall. The Board also notes that when he was seen in a VA outpatient treatment clinic in May2010, he stated he was hospitalized for two days after the fall, and was able to return to duty. The inconsistent reports of how an injury in service occurred and how it was treated, the absence of an corroborating evidence regarding treatment in the intervening years, and the fact that the initial reports in the record of a back injury in service were made after the Veteran filed a claim seeking service-connection (suggesting that the accounts are self-serving) all weigh against a finding that the Veteran's statements accounts are credible, and the Board finds they are not. Notably, following the November 2009 VA examination, the examiner opined that the Veteran's current low back disability was unrelated to service; the examiner specifically cited to the length of the intervening period between the alleged injury in-service and the Veteran's next documented episode of back pain in 2006. The Veteran's lay assertions that his low back disability is related to an injury in service are not competent evidence. Laypersons are competent to provide opinions considered competent evidence regarding the etiology of a disability in some instances. However, the matter of a nexus between a current low back disability and service, in the absence of a showing of continuity of symptoms during the intervening period, is a medical question beyond the scope of lay observation/common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the record shows that a low back disability became manifest many years after service and is not shown to be related to the Veteran's service. Accordingly, the preponderance of the evidence is against the claim of service connection for a low back disability. Claims under 38 U.S.C.A. § 1151 (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2008). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under Chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Veteran claims he went to a VA hospital in April 2010 seeking evaluation for complaints of chest pain, but was sent home without a heart monitor. He states that two days later, he drove himself to a VAMC which called an ambulance and he was transported to a private hospital. He maintains that as a consequence he suffered a heart attack. He also alleges he has a psychiatric disability due to personal insults from VA employees. He claims that he went to a VAMC for treatment and a security guard requested identification. When he presented it, the guard made derogatory comments toward him, in effect, calling him a terrorist. The Veteran insists that a VA physician refused to treat him based on his religion. He claims the behavior of the hospital staff created a hardship for him. Such treatment also led to his heart condition. VA outpatient treatment records show the Veteran was seen in February 2009 when he reported he was going through a difficult time. It was noted he had no past psychiatric history. He asserted he was subjected to racial discrimination in service and since that time had suffered from an inferiority complex. He said he had felt depressed for years, and endorsed numerous symptoms, including sad mood daily, hopelessness, feelings of worthlessness, low energy, difficulty falling asleep, frequent crying and poor concentration. He stated that a few times a year, he had thoughts that things would be better off if he were dead, but denied any plans. He also reported feelings of anxiety and a preoccupation with his ethnic identity. The assessment was major depressive disorder, rule out dysthymia. A November 2009 report of contact shows the Veteran went to the customer service office at a VA facility and stated he was tired of being called a "terrorist" and being treated differently because he was of Middle Eastern descent. He related he had a run in with a parking attendant that day when he attempted to park his car. He claims he was told there was no parking, but that the next person in line was allowed to park. He also stated he was upset because when he checked in at a pain clinic for an appointment, he sat in the waiting room for over one hour while other patients who arrived after he did were seen before he was. It is noted that a VA customer service representative contacted the pain clinic and learned there had been a miscommunication. The customer service representative spoke with a physician and nurses who were not aware the Veteran had even checked in and was waiting in the clinic. It was noted the Veteran seemed satisfied with the follow-up. The Veteran was admitted to a private hospital on April 21, 2010. It was noted he had been transferred from a VA clinic with complaints of sudden onset of left-sided chest pain after drinking Cuban coffee. He arrived at the private hospital pain-free. An electrocardiogram revealed normal sinus rhythm with nonspecific T-wave abnormalities. The impression was the Veteran had a non-ST myocardial infarction, and was status post cardiac catheterization. Additional hospital records show the onset of the chest pain occurred on the day of admission. VA outpatient treatment records show the Veteran was seen on April 23, 2010 after being discharged from a private hospital. It was noted he had been seen at the VA facility two days earlier for complaints of chest pain and had been transferred to the private hospital. The assessment was coronary artery disease. In a statement dated in June 2011, a VA psychiatrist noted the Veteran had been under her care since December 2009. He had major depressive disorder diagnosed. She stated his symptoms caused distress and affected important areas of functioning. VA outpatient treatment records show the Veteran was seen in May 2011. He noted that on several occasions he felt the staff at the VA made discriminating comments about his religion, which brought up past feelings about being discriminated against. He related the comments that had been made in the clinic made him angry and that he spoke to a patient advocate about it. He said he got angry and left and then went to the director with his concerns. A VA psychologist reviewed the Veteran's claims folder in February 2012. He noted the Veteran claimed his major depression was due to personal insults by VA employees. He summarized the two incidents the Veteran referred to. One occurred when a security guard made derogatory comments toward him, and the second was when the attending physician at a VA pain clinic refused to treat him because of his religion. The psychologist noted that a review of the medical records found no documentation of a refusal of care by any physician of record. He stated that reports of contact dated September and November 2009 and April 2011 documented rude interactions from clerical staff. It was noted the Veteran was told to "get out of my face" when he inquired about an appointment. During another incident, the Veteran concluded other Veterans were permitted to park or and were seen for appointments before him, and he believed it was because he was being discriminated against. The psychologist noted there was no independent or objective confirmation that the alleged events happened as the Veteran described them or for the reasons the Veteran assumed. He found no documentation of an event or events that would meet a reasonable definition of "hospital care, medical or surgical treatment, or examination furnished the veteran and, the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or an even not reasonably foreseeable." The VA psychologist noted there was no report of an in-house investigation. There were no peer reviews or other findings of medical error, malpractice or negligence. He observed that VA medical records show the Veteran was first seen for mental health treatment in February 2009, seven months prior to the first documented incident of rudeness or differential treatment by non-medical employees documented in the file. On February 2009 evaluation, it was noted the Veteran had no prior psychiatric history, although he had been treated with psychotropic medications. It was noted that he had financial problems after being laid off from his job. The psychologist concluded the Veteran's major depression was less likely as not proximately due to or the result of his 38 U.S.C.A. § 1151 claim, nor was it aggravated thereby. He explained that the Veteran's major depressive disorder preceded the rude and discriminatory interactions the Veteran reported. He also noted a long history of depressive symptoms and preoccupations with ethnic discrimination and identity prior to the alleged interactions documented in the claims folder. He further stated that it was unlikely the Veteran's major depressive disorder could be considered to have been aggravated significantly by those interactions, as all available estimates of functional and symptomatic severity and impairment have remained consistent in the mild to moderate range throughout his treatment (both before and after the interactions). Finally, the psychologist opined the Veteran's major depression was less likely as not proximately due to, the result of or aggravated by the heart attack. He noted the major depressive disorder preceded the heart attack that was documented in April 2010. In March 2012, a VA physician reviewed the Veteran's claims folder, and provided an opinion concerning his heart disease. The physician concluded it was less likely as not that the Veteran's heart attack was related to a claim under 38 U.S.C.A. § 1151. He noted he reviewed the claims folder, and the Veteran's comments that he was treated disrespectfully by VA employees on April 21, 2010, and again two weeks later. The physician pointed out the Veteran claimed the events resulted in a heart attack. He noted a January 2010 letter referring to the episodes of alleged mistreatment by VA employees. He noted that myocardial infarctions are caused by a rupture of a clot which migrates and occludes a coronary vessel. There is no medical basis to believe that the alleged incidents (even if they occurred exactly as described by the Veteran) many months prior to April 2010 could cause a myocardial infarction or be in any way related. There is no medical basis to conclude that the alleged episodes would have caused or aggravated coronary artery disease. The physician added that upon examination of the medical treatment prior to and during the heart attack on April 21, 2010, there was no evidence of any deviation from accepted medical standards of care. To establish entitlement to benefits under 38 U.S.C.A. § 1151, a Veteran must show both additional disability due to VA treatment and that the treatment in question involved some element of fault on the part of VA or was an unforeseen event. Neither requirement is met in this case. To the extent the Veteran's allegation that he was not provided a heart monitor constitutes a claim that the VA failed to properly treat or diagnose a disability, the Court has recognized the "difficulty in assessing the element of causation in cases involving an omission, such as a failure to diagnosis, versus those based on a commission, or an affirmative act, that leads to clearly identifiable injuries." Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009). In a claim based on an alleged failure to diagnose, "a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question. Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation-the failure to diagnose--resulted in additional disability or death." Roberson, 22 Vet. App. at 364-65. In other words, in order to prove a claim under 38 U.S.C.A. § 1151 for failure to diagnose the evidence must show: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of a medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. See Roberson v. Shinseki, 607 F.3d 809, 817 (2010) (upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (the Board is bound by precedent opinions of VA's General Counsel). The Board acknowledges that these elements were delineated by VA's General Counsel as part of the version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009). Hence, there has been no real change in the standard for these claims concerning a failure to diagnose and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal. As is noted above, the Veteran has made various arguments regarding his claim for compensation under 38 U.S.C.A. § 1151 for a heart attack and a psychiatric disability. In his April 2012 substantive appeal, he alleged that when he went to the VA in April 2010, he was sent home without a heart monitor, and that he had a heart attack two days later. This allegation is inconsistent with the record. It is true the Veteran reported to the VA clinic on April 21, 2010, but there is no indication he had been seen for complaints of chest pain prior to that day. He was sent to the private hospital, where he was treated for a myocardial infarction. When he returned to the VA on April 23, 2010, it was after he had the heart attack. The Board finds, therefore, that the VA acted appropriately when it referred the Veteran to the private hospital following his complaints of chest pain. The Veteran also asserts that his heart attack and a psychiatric disability are due to various incidents of discrimination against him at the VA facility. The record reflects that one of the occasions of discrimination described by the Veteran occurred in November 2009, after he had major depression diagnosed and several months before his April 2010 heart attack. Regardless, the etiology of an insidious disease process such as a heart attack or a psychiatric disability such as major depression, and specifically whether or not it is related to an alleged incident [even if shown to have occurred precisely as described-the Board notes that priority of treatment may not be entirely a question of first-come, first served, but may depend on medical conditions and scheduling which are not always evidence] is a medical question beyond the scope of lay observation. Here, the competent medical evidence that addresses those questions, the opinions of a VA physician and psychologist is against the Veteran's claims. They each reviewed (and expressed familiarity with) the record, and concluded the Veteran's heart attack and major depression were/are unrelated to VA treatment. This evidence is highly probative of the fact that the Veteran's heart attack and acquired psychiatric disability are not related in any way to treatment by VA the Veteran received. In Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. Id. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Id. § 1151(a)(1). Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." Id. §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." Id. § 1151(a)(1). After reviewing the language of the statute and its legislative history, the Federal Circuit noted in Viegas that there was nothing in the plain language of section 1151 that required a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel. Id. Instead, the statute requires only a "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence. Id. The Board acknowledges that hypothetically discriminatory action by VA personnel against a Veteran patient could result in an injury occurring in a VA facility from VA fault. The Federal Circuit cautioned, however, that section 1151 does not cover every injury sustained by a veteran in a VA facility. Citing to Brown v. Gardner, 513 U.S. 115 (1994), the Federal Circuit noted that the statute does not extend to "remote consequences" of hospital care or medical treatment provided by VA. Id. In this case, one of the incidents the Veteran describes occurred in a parking lot. Any disability resulting from the alleged incidents in this case cannot be deemed to have been caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Another alleged incident of discrimination occurred months before the heart attack (and could not reasonably be considered an injury proximately resulting in the heart attack). In summary the theories of causation for the heat attack and major depression proposed by the Veteran are either inconsistent with facts shown (major depression as it preceded the alleged discriminatory episodes) or are mere lay speculations (heart attack as due to failure to treatment with heart monitor or as due to discriminatory treatment) unsupported by any competent medical evidence. The competent medical evidence that addresses these matters is against the Veteran's claims. The Board finds that the preponderance of the evidence is against the claims for compensation under 38 U.S.C.A. § 1151 for a heart attack and/or a psychiatric disability. Temporary Total Ratings under 38 C.F.R. §§ 4.29 and 4.30 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 VA hospital treatment for a period in excess of 21 days. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30, a total rating will be assigned effective 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 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 wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The Veteran asserts a temporary total rating is warranted based on his hospitalization in April 2010 and that convalescence was required following the hospitalization. For a temporary total rating under both § 4.29 and § 4.30 there is a threshold legal requirement that the treatment be for a service-connected disability. The Veteran has not established service connection for any disability. Thus, clearly, this legal requirement is not met, and the Veteran's claims for these benefits lack legal merit. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. Entitlement to a TDIU Rating VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that by reason of service-connected disability the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating provides for total compensation for service-connected disabilities on the basis that such disabilities prevent a veteran from working. Once again it is noteworthy that the Veteran has not established service connection for any disability, and does not meet the threshold legal requirement for this benefit sought. Accordingly, this claim also must be denied. See Sabonis, 6 Vet. App. at 430. ORDER Service connection for a low back disability is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack related disability, claimed to have resulted from VA treatment, is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for a psychiatric disability, claimed to have resulted from VA treatment, is denied. A temporary total rating under 38 C.F.R. § 4.29 for a period of hospitalization in April 2010 is denied. A temporary total rating under 38 C.F.R. § 4.30 for convalescence following a period of hospitalization in April 2010 is denied. A TDIU rating is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs