Citation Nr: A21020410 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200316-76362 DATE: December 22, 2021 ORDER Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence or hospital treatment in excess of 21 days is denied. FINDINGS OF FACT 1. The Veteran underwent a herniorrhaphy on July 5, 2019. 2. The Veteran did not require surgical or other treatment necessitating convalescence or hospital treatment in excess of 21 days as a result of a service-connected disability. CONCLUSION OF LAW The criteria for the assignment of a temporary total disability evaluation based on surgical or other treatment necessitating convalescence or hospital treatment in excess of 21 days have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.29, 4.30 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1959 to March 1965. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the March 2020 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In August 2021, the Veteran attended a Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. Entitlement to a temporary total evaluation A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30(a), 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. The Veteran argues that a temporary total rating is warranted for hospitalization and treatment related to a herniorrhaphy in July 2019. Following a review of the relevant evidence of record, the preponderance of evidence weighs against the Veteran's claims of entitlement to a temporary total disability rating for service-connected disability requiring hospital treatment, observation, or convalescence. Regarding the Veteran's claim of entitlement to a total disability rating for service-connected disability requiring hospital treatment in excess of 21 days, the evidence of record reflects that he was hospitalized in July 2019 due to recurrent incisional hernia. However, the Veteran is not service connected for a hernia condition. Thus, the assignment of a temporary total rating pursuant to 38 C.F.R. § 4.29 is not warranted. It therefore follows that the claimed period of convalescence dating from the July 2019 herniorrhaphy was not for a service-connected disability. As such, the Board finds an assignment of a temporary total rating pursuant to 38 C.F.R. § 4.30 is also not warranted. In sum, there is no basis for the assignment of temporary total ratings per 38 C.F.R. §§ 4.29 nor 4.30. Notwithstanding, the critical element required for the assignment of a temporary total rating under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30 is that the hospital stay, or period of convalescence, must be for or the result of a service-connected disability. The Veteran does not meet that criterion. The Veteran is not service-connected for a hernia condition nor the residuals of herniorrhaphy. Absent service connection for a hernia condition or the residuals of herniorrhaphy, a temporary total rating 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). As such, the appeal is denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.