Citation Nr: 18138331 Decision Date: 09/25/18 Archive Date: 09/25/18 DOCKET NO. 14-20 270A DATE: September 25, 2018 ORDER 1. The appeal seeking compensation under 38 U.S.C. § 1151 for small bowel obstruction/herniated small bowel (small bowel disability) is dismissed. 2. An extension of the temporary total rating for convalescence following small bowel obstruction surgery is granted from October 1, 2010, through October 31, 2010, subject to regulations governing payment of monetary awards. REFERRED The issue of entitlement to a temporary total rating for convalescence following re-implant of a penile prosthesis reservoir in December 2010 has been raised by the record (in a December 2011 statement and at the May 2018 Board hearing), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. 19.9(b). FINDINGS OF FACT 1. The Veteran’s claim for benefits for postoperative small bowel disability under 38 U.S.C. § 1151 has been rendered moot by the award of secondary service connection for the disability; there is no further question of fact or law remaining for appellate consideration in the matter. 2. The Veteran’s VA surgery for small bowel obstruction required convalescence through October 31, 2010. CONCLUSIONS OF LAW 1. The Veteran’s claim for benefits under 38 U.S.C. § 1151 for a postoperative small bowel disability has been rendered moot by the award of secondary service connection for such disability; there is no question of fact or law remaining for appellate consideration in the matter, and the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. 2. A temporary total rating for convalescence for small bowel obstruction following August 2010 corrective surgery, is warranted through October 31, 2010, but not later. 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1966 to March 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision, which granted service connection for a small bowel disability as secondary to service-connected erectile dysfunction (ED), and granted a temporary total rating for such disability (for convalescence following surgery under 38 C.F.R. § 4.30) from August 20, 2010 to October 1, 2010, and denied compensation under 38 U.S.C.§ 1151 for the small bowel disability. 1. The appeal seeking compensation for a small bowel disability under 38 U.S.C. § 1151 is dismissed. A November 2011 rating decision adjudicated the Veteran’s claim seeking compensation for a small bowel disability under alternative theories of entitlement, namely as secondary to his service-connected ED and under a 38 U.S.C. § 1151 theory of entitlement. The AOJ granted service connection for a small bowel disability on a secondary service connection basis. No additional monetary or ancillary benefit can be gained with a grant under § 1151; separate compensation under that section would constitute pyramiding, which is prohibited under 38 C.F.R. § 4.14. Consequently, any further adjudication of the claim for compensation for postoperative small bowel disability under 38 U.S.C. § 1151 would be superfluous. Such claim is rendered moot; there are no factual or legal questions remaining for appellate consideration, and the appeal in the matter must be dismissed. See 38 U.S.C. § 7105(d)(5). 2. An extension of a temporary total rating for convalescence following small bowel obstruction surgery is granted through October 31, 2010. 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; or, as applicable here, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, or the necessity for house confinement. The Veteran asserts that the temporary total rating assigned from August 20, 2010 to October 1, 2010, should “have expired in January [2011].” See December 2011 statement. [To the extent that he seeks a temporary total rating for convalescence following December 17, 2010, re-implant of penile prosthesis reservoir surgery, as argued, that separate matter has been referred for AOJ initial consideration.] The Veteran had established service-connection for prostate cancer and ED with penile prosthesis. On August 20, 2010, he underwent surgery to repair a “dysfunctional previously placed penile implant.” He was discharged home the following day. On August 22, 2010, he reported to the emergency room with complaints of nausea and vomiting; a CT scan showed a small bowel obstruction. He was admitted to the hospital for conservative management with a nasogastric tube and IV fluids. On September 1, 2010, a repeat CT scan showed “persistence of small bowel obstruction with concern of a transition point over the level of obstruction near the reservoir within the right abdomen.” On September 3, 2010, he underwent exploratory laparotomy and small bowel resection surgery. He developed a postoperative infection “of Candida tropicalis per blood cultures which responded well to IV Diflucan, started having return of bowel function and discharged on” September 11, 2010, when the record shows he was tolerating a regular diet, having bowel movements, controlling pain with oral pain medication, and ambulating down the hallways. [In sum, he was admitted 21 days from August 22 to September 11, 2010.] Discharge instructions included to resume a regular diet and to avoid strenuous activity. He continued to heal without complications. See October 2011 VA medical opinion. A December 9, 2010 VA treatment record notes that the Veteran reported feeling well and that he “continues to be active, has been doing weights as he can tolerate.” He specifically reported feeling “recovered from his inguinal surgery and bowel resection.” On December 17, 2010, the Veteran underwent surgery to re-implant the penile prosthesis reservoir. There were no surgical complications. He remained overnight for supervision and was discharged the following day. At the May 2018 Board hearing, the Veteran testified that he was hospitalized for 20 or 21 days following his August 2010 surgery. On questioning by his representative, he testified that he was “bedridden” until “Probably sometime in January, probably.” He later testified that he was “incapacitated” and “couldn’t do anything” after both his September and his December surgeries. His representative contended that the Veteran should be rated 100 percent from the date of the August 2010 surgery “at least until January of 2011.” A temporary total rating under 38 C.F.R. § 4.30 for the small bowel obstruction was assigned from August 20, 2010 to October 1, 2010. The Veteran seeks extension of that temporary total rating until January 2011. Upon review of the record, the Board finds that an extension of the temporary total rating based on convalescence is warranted through October 31, 2010. The Veteran was admitted to the hospital on August 22, 2010, and discharged September 11, 2010. Under 38 C.F.R. § 4.30, a total disability rating will be assigned effective the date of hospital admission and continue for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. As the Veteran was discharged September 11, 2010, he is entitled to an additional month of a temporary total rating for convalescence through October 31, 2010. The Board finds that an extension beyond October 31, 2010, is not warranted as the record after that date does not show severe postoperative residuals, such as incompletely healed surgical wounds, a necessity for house confinement, etc. See 38 C.F.R. § 4.30. The contemporaneous evidence shows that, following hospital discharge, he healed without complications and did not require convalescence beyond October 31, 2010. Notably, on December 9, 2010, he reported he was feeling well and being active, including exercising with weights he could tolerate (i.e., had not been convalescing). The Board notes the he Veteran’s May 2018 hearing testimony, that he was incapacitated until “probably” sometime in January 2011. However, such testimony is inconsistent with contemporaneous medical evidence, which the Board finds more probative in establishing when (almost 8 years in the past) the need for convalescence ended. In summary, extension of a temporary total rating for convalescence following small bowel obstruction surgery is warranted through October 31, 2010, but not beyond. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel