Citation Nr: 1621577	
Decision Date: 05/31/16    Archive Date: 06/08/16

DOCKET NO.  14-01 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for a right ring finger disability.

2.  Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 based on right carpal tunnel syndrome surgery performed on November 5, 2009.


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION


The Veteran served on active duty from October 1970 to May 1972. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In November 2013, the Veteran testified before a Decision Review Officer and in February 2016 he testified before the undersigned.  Transcripts of these hearings have been associated with the claims file.  


FINDINGS OF FACT

1.  At the February 2016 hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal regarding his entitlement to an increased rating for his right ring finger disability.

2.  The Veteran was not service connected for right carpal tunnel syndrome until January 28, 2010, months after his November 5, 2009, right endoscopic carpal tunnel release.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal as to the claim for an increased rating for a right ring finger disability are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2.  The criteria for a temporary total rating pursuant to 38 C.F.R. § 4.30 based on right carpal tunnel syndrome surgery performed on November 5, 2009, are not met.  38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.29, 4.30 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Appeal

At the February 2016 hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran testified that he was withdrawing his appeal as it pertained to his claim for an increased rating for his right ring finger disability.  See Board Hearing Transcript at 2.  Therefore, the Board finds that there remains no allegation of error of fact or law for appellate consideration with respect to this issue, the Board does not have jurisdiction to review it, and it is dismissed.  38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

Temporary Total Rating

The Veteran seeks a temporary total rating pursuant to 38 C.F.R. § 4.30 for at least one month of convalescence following right carpal tunnel syndrome surgery performed on November 5, 2009. 

Initially, the Board finds that it need not discuss VA's duty to notify and assist as it relates to the appeal because the law is dispositive in this case.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence).

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted.  In pertinent part, a total rating will be assigned under this section if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence.  38 C.F.R. § 4.30.

Here, service connection for right carpal tunnel syndrome was not in effect at the time of the Veteran's November 5, 2009, right endoscopic carpal tunnel release.  Instead, the effective date for service connection for that disability is January 28, 2010; months after his surgery.  See June 2010 rating decision.  As a temporary total evaluation cannot, as a matter of law, be awarded prior to the effective date for the award of service connection for a disability, his claim must be denied for lack of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).  


ORDER

The appeal regarding the claim for an increased rating for a right ring finger disability is dismissed.

A temporary total rating pursuant to 38 C.F.R. § 4.30 based on right carpal tunnel syndrome surgery performed on November 5, 2009, is denied.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs