Citation Nr: 21074931 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-41 482A DATE: December 16, 2021 ORDER As of September 17, 2013, a temporary total rating for a period of one month, but no longer, based on surgical or other treatment necessitating convalescence for service-connected gastroesophageal reflux disease (GERD) with status post cholecystectomy is granted, subject to the laws and regulations governing payment of monetary benefits. FINDING OF FACT Resolving all doubt in favor of the Veteran, she was in need of convalescence for a period of one month following her September 17, 2013, cholecystectomy for her service-connected GERD with status post cholecystectomy. CONCLUSION OF LAW As of September 17, 2013, the criteria for a temporary total rating for a period of one month, but no longer, based on surgical or other treatment necessitating convalescence for service-connected GERD with status post cholecystectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in, May 2014 by a Department of Veterans Affairs (VA) Regional Office. In January 2017, the Veteran testified at a hearing before a Decision Review Officer and, in April 2018, she testified at a hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In March 2019, January 2021, and April 2021, the Board remanded the instant claim for additional development and it now returns for further appellate review. The Board notes that, since the issuance of the most recent supplemental statement of the case in September 2021, additional evidence has been associated with the record and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of it. However, as such newly received evidence is irrelevant to the issue on appeal, there is no prejudice to the Veteran in the Board proceeding with a decision on the instant matter at the present time. 38 C.F.R. § 20.1305(c). The Board also observes that the Veteran has perfected an appeal as to the issues of entitlement to an increased rating for adjustment disorder with mixed anxiety and depression and an earlier effective date for such rating; however, as she requested a Board hearing before a Veterans Law Judge in connection with such appeal, those issues will be the subject of a separate Board decision issued at a later date, if otherwise in order. Entitlement to a temporary total disability rating based on surgical or other treatment necessitating convalescence for service-connected GERD with status post cholecystectomy. The Veteran is seeking a temporary total rating for the period following her September 17, 2013, cholecystectomy associated with her service-connected GERD. In this regard, it is an established policy of VA that veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of a disability which is temporary in nature such as a period of convalescence following surgery, governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. All reasonable doubt will be resolved in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 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 (including outpatient surgery after March 1, 1989) 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). "Convalescence" does not necessarily entail in-home recovery. Felden v. West, 11 Vet. App. 427, 430 (1998). Rather, such is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Id. The recovery is defined as "the act of regaining or returning toward a normal or healthy state." Id. As an initial matter, the Board notes that the issue was remanded in April 2021 in order to obtain private treatment records from Ascension St. John Hospital pertaining to the Veteran's September 2013 cholecystectomy, including post-operative treatment records. However, the AOJ contacted such medical facility on numerous occasions in June 2021, and has not received a response to date. Additionally, in July 2021, the Veteran was notified that the AOJ was unable to obtain such records and provided an opportunity to submit such records; however, she did not do so. Thus, as VA has satisfied its duty to assist in such regard, the Board's review is limited to the evidence already of record. Nonetheless, upon review of the record, the Board finds that a temporary total rating based on convalescence following the Veteran's September 17, 2013, cholecystectomy is warranted for a period of one month, but no longer. In this regard, an August 2013 letter from Dr. D.S. noted that the Veteran was scheduled for surgery on September 17, 2013. An October 2013 private treatment record noted that the Veteran had a cholecystectomy and had been using Vicodin for a little bit thereafter. However, she had since been off of it for several weeks. A November 2013 private treatment record noted that the cholecystectomy went well, and the Veteran had no further abdominal or gastrointestinal pain. A subsequent November 2013 VA treatment record also revealed that she denied abdominal pain, nausea, vomiting, diarrhea, constipation, and heartburn. In April 2014, the Veteran underwent a VA gallbladder examination, at which time such examiner noted a diagnosis of status post laparoscopic cholecystectomy with no residuals. Thus, after resolving all doubt in favor of the Veteran, the Board finds that she is entitled to a temporary total evaluation based on surgical treatment necessitating convalescence following her September 17, 2013, cholecystectomy for a period of one month, but no longer. Specifically, her treatment records indicate that she required the use of Vicodin following her cholecystectomy. However, she stopped taking such medication within a month. Additionally, in November 2013, two months after her cholecystectomy, a clinician noted that such surgery had gone well, and the Veteran reported that she did not have further abdominal or gastrointestinal pain. Thus, while a temporary total evaluation based on surgical treatment necessitating convalescence is warranted for one month after the Veteran's September 17, 2013, cholecystectomy, the Board finds that the preponderance of the evidence does not support such a rating for a longer period. Thus, the benefit of the doubt doctrine is inapplicable in such regard and the Veteran's claim for a temporary total evaluation based on surgical treatment necessitating convalescence beyond one month must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.