Citation Nr: 21071700
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 17-06 348
DATE: December 1, 2021

ORDER

Entitlement to a total temporary evaluation based on surgical or other treatment necessitating convalescence for recurrent perirectal abscess is denied.

FINDING OF FACT

The Veteran was not hospitalized over 21 days for treatment of a service-connected disability during the appeal period, nor did he require surgical or other treatment necessitating convalescence for a service-connected disability during the appeal period.

CONCLUSION OF LAW

The criteria for entitlement to a total temporary evaluation based on surgical or other treatment necessitating convalescence for recurrent perirectal abscess have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.30.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1981 to January 1989, December 2003 to June 2005, January 2008 to January 2009, and from September 2011 to November 2012.

The Board notes that the Veteran originally requested a videoconference hearing for this appeal. However, the request was withdrawn in July 2021 correspondence from the Veteran's representative. Therefore, it is properly before the Board at this time. 

Entitlement to a total temporary evaluation based on surgical or other treatment necessitating convalescence for recurrent perirectal abscess

The Veteran contends that he is entitled to a temporary total evaluation due to surgeries for a recurrent perirectal abscess from November 2013 to June 2014.

A total disability 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 that hospital observation at VA expense is required 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) also 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 to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30.

Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a one major joint or more, application of a body cast, 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). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities.

Notably, the Veteran is service-connected for the following disabilities: 1) diabetes mellitus type II; 2) right lower extremity peripheral neuropathy; 3) left lower extremity peripheral neuropathy; 4) bilateral tinnitus; 5) chronic low back strain with degenerative joint disease; 6) right knee patellofemoral syndrome; 7) left knee patellofemoral syndrome; and 8) bilateral hearing loss.

Here, VA treatment records reflect the Veteran show that he was seen in November 2013 at which time he reported a prior perirectal abscess was drained four years earlier. The Veteran underwent an incision and drainage in November 2013 and a fistulotomy in June 2014. Importantly, the Veteran is not in receipt of service connection for a perirectal abscess or fistula. While the Veteran's representative cited to an internet article for support that diabetic patients are at increased risk for perirectal abscess, the VA treatment records do not show such a link. The Veteran was monitored due to his diabetic status as shown by VA treatment records from November 2013, March 2014 and June 2014. 

In this case, the Board finds that, because the Veteran was not hospitalized for more than 21 days for a service-connected disability during the appeal period, VA may not award benefits under 38 C.F.R. § 4.29. The Veteran stayed overnight one night each time in November 2013, March 2014 and June 2014. In addition, VA may not award benefits under 38 C.F.R. § 4.30 for a temporary total convalescence rating because there is no evidence the Veteran underwent surgery for a service-connected disability or suffered from immobilization by cast to treat a service-connected disability during the appeal period.

The Board is bound by the law and is without authority to grant benefits on an equitable basis. The legal authority pertaining to awards of temporary total ratings under 38 C.F.R. § 4.29, as well as under 38 C.F.R. § 4.30, is prescribed by Congress and implemented via regulations enacted by VA. Neither the AOJ nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). Significantly, VA can only pay benefits that are authorized by law. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). 

Again, it is noted the Veteran and his representative contend that VA should have inferred a claim for service connection for perirectal abscess based on his original claim for a temporary total rating. The Veteran and his representative may file a new claim for service connection for perirectal abscess on the proper VA form.

Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The claim for a temporary total evaluation must be denied. 38 C.F.R. §§ 4.29, 4.30.

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Miller, 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.