Citation Nr: 20021212
Decision Date: 03/25/20	Archive Date: 03/25/20

DOCKET NO. 19-15 428
DATE: March 25, 2020

ORDER

The appeal with respect to the Veteran’s entitlement to a temporary total rating based upon the need for medical treatment and/or convalescence for basal and squamous cell carcinoma is dismissed.

FINDING OF FACT

The Veteran is in receipt of a permanent and total (100 percent) schedular rating for basal and squamous cell carcinoma, effective from the date of the award of service connection.

CONCLUSION OF LAW

The claim of entitlement to a temporary total rating based upon the need for medical treatment and/or convalescence for basal and squamous cell carcinoma is moot.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.29, 4.30.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from February 1943 to January 1946. 

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

This case was previously before the Board in June 2019.  The Board reopened and granted the Veteran’s previously denied claim for service connection for basal and squamous cell carcinoma and remanded the matter of his entitlement to a temporary total rating for additional development.  There has been at least substantial compliance with the Board's remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to a temporary total rating

Temporary total ratings can be assigned under certain circumstances for periods of hospitalization in excess of 21 days for a service-connected disability, for a period of at least one month of convalescence necessitated by surgery involving a service-connected disability, for severe post-operative residuals involving incompletely healed surgical wounds, or based on the necessity of house confinement.  See 38 C.F.R. §§ 4.29, 4.30.

In the present case, a February 2020 rating decision effectuated the Board’s award of service connection for basal and squamous cell carcinoma, effective August 21, 2016, assigning a 100 percent initial rating throughout the period on appeal.  As detailed in that rating decision and concurrent Supplemental Statement of the Case (SSOC) the agency of original jurisdiction has deemed the rating to be permanent in nature.  See 38 C.F.R. § 3.340.

In light of the foregoing, the Board finds that the Veteran’s claim for a temporary total rating pursuant to 38 C.F.R. §§ 4.29 and/or 4.30 is moot.  Simply put, a total rating, deemed permanent, is already in effect throughout the  

period on appeal.  Because the maximum available benefit has already been granted, the present appeal must be dismissed.  

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	John Kitlas, 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.