Citation Nr: 18147162
Decision Date: 11/02/18	Archive Date: 11/02/18

DOCKET NO. 16-36 327
DATE:	November 2, 2018
ORDER
Entitlement to a temporary total disability based upon hospital treatment in excess of 21 days is denied.
FINDING OF FACT
The Veteran was not hospitalized in excess of 21 days for treatment or observation for any of his service-connected disabilities.
CONCLUSION OF LAW
The criteria for a temporary total disability rating under 38 C.F.R. § 4.29 for hospitalization in excess of 21 days have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.29.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 2000 to August 2008.
Entitlement to a temporary total disability based upon hospital treatment in excess of 21 days 
The Veteran contends that although he was not hospitalized for 21 days for service-connected disabilities, he should still receive a temporary total disability rating because prior to that hospitalization, the Veteran contacted the crisis hot line with threats  to kill himself with multiple suicide attempts.  His caregiver indicated that the Veteran should not have been released from the hospital before 21 days. 
Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that one or more service-connected disabilities 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. 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).
The Veteran is service-connected for a traumatic brain injury (TBI), adjustment disorder with depressed mood, and unspecified psychotic disorder. According to medical treatment records, on November 6, 2013, the Veteran was taken to the emergency department and subsequently admitted for schizoaffective disorder, depressed type, amphetamine use disorder, TBI, hypertension and a bite wound. The Veteran was discharged from the hospital 12 days later on November 18, 2013. There are no other hospital admissions for service-connected disabilities.
Based on the foregoing, the Board cannot find that the Veteran was admitted to an inpatient program for a service-connected disability a period in excess of 21 days as required by 38 C.F.R. § 4.29. The Veteran’s hospitalizations during November 2013 were only 12 days in duration. 
The Board acknowledges the statements submitted by the Veteran’s mother in May 2014 and January 2018. However, the Veteran is already service-connected and receiving compensation for the symptoms and conditions described in these statements and are not part of the criteria to be considered under the provisions of 38 C.F.R. § 4.29.
Furthermore, the Board notes that the Veteran’s medical treatment records indicate that following his November 18, 2013 discharge, the Veteran only required to followup at the outpatient mental health services “a couple times a week.” Therefore, the Board finds that the Veteran did not require post-hospital care or a prolonged period of convalescence. Thus, referral to the Director of Compensation under 38 C.F.R. 3.321(b)(1) is not necessary. 38 C.F.R. § 4.29(g).
For these reasons, 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. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
M.E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Perkins, Michael