Citation Nr: 21062618 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-62 251 DATE: October 8, 2021 ORDER A temporary total rating under the provisions of 38 C.F.R. § 4.30 based on hernia repair surgery performed in April 2013 is denied. FINDING OF FACT The record does not contain a hospital discharge or outpatient release report indicating that the Veteran required at least one month of convalescence following his April 2013 hernia repair surgery, that he experienced severe postsurgical residuals, or that he had immobilization of at least one major joint by cast (without surgery). CONCLUSION OF LAW The criteria for an award of a temporary total rating based on hernia surgery performed in April 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1971, to include service in Vietnam. His decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Bronze Star Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2016 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., and a VA Regional Office (RO). In November 2016, the AMC assigned a 0 (zero) percent (noncompensable) rating for an incisional and ventral wall hernia, effective February 27, 2012. The Veteran appealed, seeking an earlier effective date for the award, as well as temporary total ratings based on the need for convalescence following hernia surgeries performed in January 2012, January 2013, and April 2013. In August 2017, the RO explicitly denied his claim for temporary total ratings. In August 2019, the Board denied an effective date earlier than February 27, 2012 for the award of service connection for an incisional and ventral wall hernia, and also denied a temporary total rating under the provisions of 38 C.F.R. § 4.30 based on hernia repair surgery performed in January 2012. The matter of the Veteran's entitlement to temporary total ratings based on surgeries performed in January 2013 and April 2013 was remanded to the agency of original jurisdiction (AOJ) for additional development. In June 2020, after taking further action, the AOJ granted a temporary total rating based on the hernia surgery performed in January 2013. The prior denial with respect to the surgery performed in April 2013 was confirmed and continued, and that issue was returned to the Board. See June 2020 supplemental statement of the case. In a December 2020 statement, the Veteran's representative indicated that the Veteran wanted to appear at a Board hearing. However, the Veteran later withdrew that request in September 2021. See 38 C.F.R. § 20.704(e). A temporary total rating under the provisions of 38 C.F.R. § 4.30 based on hernia repair surgery performed in April 2013 is denied. Temporary total disability ratings for convalescence are governed by 38 C.F.R. § 4.30. Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results 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(a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. Extensions of one or more months up to six months beyond the initial six-month period may be made for reasons (2) or (3) above. 38 C.F.R. § 4.30(b). Pursuant to 38 C.F.R. § 4.30, the disability requiring treatment (hospitalization, convalescence, or immobilization) must be service connected. In this case, the Veteran asserts that a temporary total rating is warranted due to an April 2013 surgery he underwent to treat his service-connected hernia. Specifically, he contends that his activities were significantly restricted following the April 2013 surgery, and that he could not resume normal activities until August 1, 2013. See, e.g., December 2017 VA Form 9. An April 2013 treatment record shows that the Veteran underwent hernia repair surgery on April 8, 2013 and was discharged from the hospital on April 9, 2013. An April 26, 2013 post-operative follow up treatment record noted that he had been doing quite well with no complaints, and that he should not perform any heavy lifting or strenuous activity for the following three months. A July 2013 post-operative follow up treatment record noted that he had been doing quite well with no significant complaints, that occasionally he would feel mild discomfort in the surgical repair site, and that he could resume regular activities as tolerated including playing golf. While the Board is sympathetic to the difficulties the Veteran faced after his April 2013 hernia surgery, 38 C.F.R. § 4.30 is clear that a temporary total rating is only warranted when a report at hospital discharge (regular discharge or release to non-bed care) or outpatient release documents the need for post-surgical convalescence of at least one month, severe postsurgical residuals, or immobilization by cast (without surgery). Here, the record only shows that he could not perform strenuous activity, such as heavy lifting. That sort of limitation on activity does not rise to the level of convalescence. In sum, the Veteran's April 2013 surgical records and follow-up treatment records do not document a required convalescence period of at least one month issued by his medical provider or any severe postsurgical residuals, as defined by the regulation. See 38 C.F.R. § 4.30(a)(1) and (2). In addition, he underwent a surgical hernia repair and did not require immobilization by cast of any joints. See 38 C.F.R. § 4.30(a)(3). For the foregoing reasons, a temporary total rating is not warranted based on the April 2013 surgery. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.