Citation Nr: 20009753 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-55 006 DATE: February 6, 2020 ORDER Entitlement to a temporary total evaluation (TTE) due to hospitalization or hospital treatment in excess of 21 days from February 3, 2016 to March 30, 2016 is denied. FINDING OF FACT The Veteran is not service-connected for a condition for which hospitalization or hospital treatment was required in excess of 21 days from February 3, 2016 to March 30, 2016. CONCLUSION OF LAW The criteria for entitlement to TTE due to hospitalization or hospital treatment in excess of 21 days from February 3, 2016 to March 30, 2016 have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 4.29, 4.30 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force on active service from March 1987 to September 1995. In addition, he served in the Air Force Reserve and National Guard, including a period of active duty for training from June to October 1981. This appeal comes before the Board of Veterans Appeals (Board) from an April 2016 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested to testify before the Board in his October 2017 substantive appeal, and selected the option to testify via video teleconference (VTC) from his local RO. The hearing was scheduled in October 2019. However, in the same month, the Veteran’s attorney withdrew the Board hearing and requested a hearing before a Decision Review Officer (DRO) instead. The RO scheduled the DRO hearing for the same day that the October 2019 VTC Board hearing had been scheduled. Both the Veteran’s attorney and the Veteran failed to report. Review of the medical record shows the Veteran was hospitalized for care of a neck abscess the day before the hearing was to have been held. Thus, the RO made several attempts to contact the Veteran’s attorney to reschedule the DRO hearing, to no avail. See October and December 2019 Reports of Contact. To date, the Veteran’s attorney has not responded to reschedule the DRO hearing. Given the Veteran’s attorney withdrew the request for a hearing before the Board, and given that an opportunity with sufficient time to respond was provided to reschedule the missed October 2019 DRO hearing, but the Veteran’s attorney declined to respond, the Board finds it may continue with the adjudication of this claim. In addition, the April 2016 rating decision listed the subject period of hospitalization or hospital treatment as from February 23, 2016 to March 22, 2016. However, VA treatment records reflect the Veteran was admitted on February 3, 2016, and discharged March 22, 2016 to daily outpatient treatment until March 30, 2016. Thus, the Board has recharacterized the issue as on the front page of this decision. A temporary total 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. 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 (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted where treatment of a service-connected disability resulted in one of three conditions effective from 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 such hospital discharge or outpatient release. In order to attain the temporary total disability rating, the Veteran must demonstrate that his 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 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. The Veteran argues that a TTE is warranted for hospitalization and treatment required for B-cell lymphoma greater than 21 days from February 3, 2016 to March 30, 2016. There is no dispute that the Veteran was hospitalized for the treatment of large B-cell lymphoma. VA treatment records show the Veteran was hospitalized from February 3, 2016 to March 22, 2016 status post fulminant liver failure secondary to diffuse large B-cell lymphoma for rehabilitation trial and skilled care. He was discharged to outpatient care on March 22, 2016 but required additional daily Filgrastim injections for five more days, testing on March 28, and follow-up with oncology on March 30. See CAPRI Treatment Records (rec’d 8/25/2017), pp. 4, 8 of 114. Notwithstanding, the critical element required for the assignment of a TTE under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30 is that the hospital stay or convalescence must for or the result of a service-connected disability. The Veteran does not meet that criterion. The Veteran is not service-connected for B-cell lymphoma. Service-connection for B-cell lymphoma was denied in an October 2016 rating decision. The Veteran did not appeal this decision, and it became final. Absent service-connection for B-cell lymphoma, a TTE cannot be granted as a matter of law under 38 C.F.R. §§ 4.29 or 4.30. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Accordingly, the award of TTE for hospitalization or hospital treatment greater than 21 days for B-cell lymphoma from February 3, 2016 to March 30, 2016 is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L.J. Bakke, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.