Citation Nr: 1603378 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-08 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to a temporary total evaluation due to hospitalization in excess of 21 days for the service-connected nephrolithiasis disability for the period prior to August 25, 2011, or after September 30, 2011. 2. Entitlement to a temporary total evaluation due to treatment requiring convalescence for the service-connected nephrolithiasis disability for the period after September 30, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1957. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. By way of procedural background, the Veteran's claim for a temporary 100 percent rating was initiated by special review by the RO due to notification of hospitalization. Thereafter, in an August 2011 rating decision, the RO denied entitlement to a temporary total evaluation for the service-connected nephrolithiasis disability as it was not shown that the Veteran had been hospitalized for more than 21 days. The Veteran filed a timely notice of disagreement with the August 2011 rating decision. Subsequently, in a November 2012 rating decision, the RO granted a 100 percent temporary rating effective August 25, 2011, (the date the Veteran was admitted to the hospital) to September 30, 2011 (the date of termination of the convalescence period). The RO assigned a 30 percent rating for the service-connected nephrolithiasis disability effective October 1, 2011. The Veteran was notified of this decision in December 2012. Despite the November 2012 rating decision which granted a 100 percent total temporary rating, the RO issued a statement of the case in December 2012 purportedly continuing the denial of a temporary total evaluation for the service-connected nephrolithiasis disability. The Veteran thereafter submitted his substantive appeal. In sum, the Veteran is currently in receipt of a temporary 100 percent rating from August 25, 2011, to September 30, 2011. The Veteran has not expressed disagreement with the 30 percent rating assigned effective October 1, 2011; accordingly, that issue is not before the Board for consideration. As such, the Board will only consider whether an extension of the temporary rating is warranted, i. e., for the period prior to August 25, 2011, or after September 30, 2011. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT 1. The Veteran was not hospitalized in excess of 21 days for treatment or observation of a service-connected disability. 2. The Veteran's procedure and treatment for the service-connected disability did not necessitate convalescence for more than four weeks. CONCLUSIONS OF LAW 1. The criteria for a temporary total disability rating under 38 C.F.R. § 4.29 for hospitalization in excess of 21 days for the period prior to August 25, 2011, or after September 30, 2011, have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.29 (2015). 2. The criteria for a temporary total evaluation for convalescence, pursuant to the provisions of 38 C.F.R. § 4.30 for the period after September 30, 2011, have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.30 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Regarding the Veteran's claim, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case here, although the Board notes that adequate notice was provided and sufficient evidence was developed in this appeal and that no further development is required. Temporary Total Evaluation Laws and Analysis 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. 38 C.F.R. § 4.29 (2015). Subject to the provisions of paragraphs (d), (e), and (f) of § 4.29, 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). If a hospital admission was for disability not connected with service, and 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. See 38 C.F.R. § 4.29(b). A temporary total disability rating is also for assignment without regard to other provisions of the rating schedule when it is established that treatment for a service-connected disability resulted in surgery necessitating at least one month of convalescence. This rating will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, recent amputation stumps, 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). Extensions of 1, 2, or 3 months beyond the initial 3 months may be granted under the provisions of 38 C.F.R. § 4.30(a) (1), (2), or (3), (noted above) and further extensions of 1 or more months, up to 6 months, may only be made under the provisions of 38 C.F.R. § 4.30(a) (2) or (3) (e.g., where there are severe postoperative residuals). 38 C.F.R. § 4.30(b). A temporary total convalescent rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery. See 38 C.F.R. § 4.30. Thereafter, any chronic residual disability is rating under the schedular criteria for the disability. Analysis Under 38 C.F.R. § 4.29 In this case, the evidence includes an August 27, 2011 VA discharge summary. In the summary, the VA physician noted that the Veteran was admitted on August 25, 2011, for left ureterolithiasis. He underwent a pyeloscopy with laser stone lithotripsy and was discharged on August 27, 2011. The physician noted that the Veteran was to avoid heavy lifting for three weeks, was to follow a low salt diet, and was provided a four week period of convalescence. As noted above, the Veteran is already in receipt of a temporary total evaluation from August 25, 2011, (the date the Veteran was admitted to the hospital) to September 30, 2011 (the date of termination of the convalescence period). Nothing in the Veteran's claims file demonstrates that he received hospital treatment for a service-connected disability for a period in excess of 21 days. Instead, the Veteran was hospitalized for only two days (from August 25, 2011 to August 27, 2011). As such, the Board finds that the preponderance of the evidence is against the assignment of a temporary total evaluation due to VA hospital treatment in excess of 21 days for the period prior to August 25, 2011, or after September 30, 2011. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Under 38 C.F.R. § 4.30 The Board also finds that the weight of the evidence is against the award of a temporary total rating under 38 C.F.R. § 4.30. The evidence of record, specifically, the August 27, 2011, discharge summary note, shows that the Veteran had a four week period of convalescence. There is no evidence in the record showing that the Veteran required a period of convalescence for more than one month. The evidence of record also does not demonstrate that the Veteran's procedure resulted in severe postoperative residuals such as incompletely healed surgical wounds, recent amputation stumps, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, the necessity for continued use of a wheelchair or crutches, or immobilization by cast. 38 C.F.R. § 4.30(a). For these reasons, a temporary total disability rating for convalescence is not warranted for the period after September 30, 2011. There is a preponderance of the evidence against the claim, and as such, the benefit-of-the-doubt provisions do not apply. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a temporary total evaluation because of VA hospital treatment or observation in excess of 21 days for the period prior to August 25, 2011, or after September 30, 2011, is denied. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 for treatment of a service-connected disability requiring convalescence for the period after September 30, 2011, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs