Citation Nr: 21008893 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-42 045 DATE: February 18, 2021 ORDER Entitlement to an earlier effective date for a temporary total rating due to an in-patient admission in excess of 21 days for major depressive disorder (MDD), from September 29, 2015 to November 17, 2015, is denied. FINDING OF FACT The Veteran is in receipt of the earliest possible effective date for a temporary total rating due to an in-patient admission in excess of 21 days for MDD, from September 29, 2015 to November 17, 2015. CONCLUSION OF LAW The criteria for an earlier effective date for a temporary total rating due to an in-patient admission in excess of 21 days for MDD, from September 29, 2015 to November 17, 2015, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2004 to August 2004 and from July 2005 to August 2006. In a February 2016 rating decision, the Regional Office (RO) granted a temporary total rating due to a hospitalization in excess of 21 days for major depressive disorder from September 29, 2015, the date the Veteran was admitted, to November 30, 2015, the last day of the month of hospital discharge. In April 2016, the Veteran filed a Notice of Disagreement where he marked that he wanted to appeal the effective date and evaluation of disability for the temporary total rating. The Board notes a total rating is the highest rating available, and the disability cannot be evaluated for a higher rating. In an October 2016 rating decision, the RO issued a statement of the case, which continued the denial for an earlier effective date for the temporary total rating due to a hospitalization in excess of 21 days. In October 2016, the Veteran filed the VA Form 9, Appeal to Board of Veterans’ Appeals, to disagree with the decision in the October 2016 SOC. In September 2018, the Board remanded the following claims: (1) entitlement to a rating in excess of 70 percent for a psychiatric disability prior to September 29, 2015, and in excess of 70 percent as of December 1, 2015; (2) entitlement to a temporary total disability evaluation due to an in-patient admission in excess of 21 days; and (3) entitlement to special monthly compensation (SMC) based on a need for aid and attendance or on account of being housebound for the RO to consider addendum medical opinions and private and VA treatment records. The Board finds there was substantial compliance with that development. In a March 2020 rating decision, the RO granted a 100 percent rating for MDD effective March 19, 2015, the date the claim for an increased rating for MDD was received. In an October 2020 rating decision, the RO granted SMC based on aid and attendance effective May 21, 2020, the date of the application for the caregiver program. The claim for an earlier effective date for a temporary total rating due to a hospitalization in excess of 21 days returns to the Board for further appellate review. Entitlement to an earlier effective date for a temporary total rating due to an in-patient admission in excess of 21 days for MDD, from September 29, 2015 to November 17, 2015. The Veteran contends he is entitled to an earlier effective date for a temporary total rating due to a hospitalization in excess of 21 days for MDD. The preponderance of the evidence is against the claim for an earlier effective date for a temporary total rating due to a hospitalization in excess of 21 days for MDD. The reasons follow. The Board will first explain the early procedural history to assist the Veteran with understanding what has happened in this case. In September 2008, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD) with major depression. In a February 2009 rating decision, the RO denied the claim for service connection for PTSD, including major depression. In May 2009, the Veteran filed a Notice of Disagreement to appeal the September 2008 denial of service connection for PTSD. In a November 2009 rating decision, the RO granted service connection for major depression in partial remission for treatment purposes only under 38 U.S.C. Chapter 17. Service connection for entitlement to VA benefits was denied in this decision. The Veteran was notified of this decision in the same month, which included his appellate rights. The Veteran did not appeal the November 2009 rating decision within one year; therefore, the November 2009 rating decision became final. In December 2010, the Veteran filed an application to reopen the previously denied claim for service connection for PTSD. In a July 2011 rating decision, the RO granted service connection for an acquired psychiatric condition to include depression not otherwise specified (NOS), anxiety NOS and assigned a 30 percent rating, effective December 7, 2010, the date VA received the request to reopen the claim for service connection for PTSD. In an October 2014 rating decision, the RO recharacterized the acquired psychiatric disorder to include depression NOS, anxiety NOS as MDD, and the evaluation was increased to 70 percent, effective March 20, 2014, the date of the claim for an increased rating. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Even though the Veteran experienced psychiatric symptoms prior to December 7, 2010, December 7, 2010 is the earliest possible effective date for service connection for MDD and any associated disability ratings. The effective date may be further limited by other regulations. 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 hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f), this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. Id. The evidence of record shows the Veteran underwent three in-patient admissions for his mental health. For example, in 2008, the Veteran was admitted to an inpatient unit from August 17, 2008 to August 22, 2008 and again from September 1, 2008 to September 3, 2008. Both of these in-patient admissions occurred before the award for service connection for MDD and both in-patient admissions are also less than 21 days. Therefore, even if they fell within an appropriate timeframe, the Veteran could not receive a temporary total disability rating for either period under 38 C.F.R. § 4.29, as the provisions of § 4.29 are limited to service-connected disabilities. The Veteran also received in-patient treatment from September 29, 2015 to November 17, 2015. He has been granted a temporary total rating due to a hospitalization in excess of 21 days for this period. The effective dates currently assigned are from September 29, 2015, the date he was admitted, to November 30, 2015, the last day of the month of hospital discharge. This is the maximum effective period available for the in-patient treatment from September 29, 2015 to November 17, 2015. Id. The 100 percent rating assigned from March 19, 2015 again became effective December 1, 2015, after the period of temporary total disability rating ended. The Veteran has not submitted evidence of any additional hospital treatment in excess of 21 days and/or evidence that the dates upon which the effective period is based, September 29, 2015 and November 17, 2015, are incorrect. Therefore, an earlier effective date for a temporary total rating due to an in-patient admission in excess of 21 days for MDD is not warranted. The record also does not reflect any other periods of in-patient treatment or hospitalization for the service-connected MDD in excess of 21 days; therefore, a new, separate rating under § 4.29 is not warranted. Since eligibility for a temporary total rating due to an in-patient admission in excess of 21 days is predicated on the in-patient admission for a service-connected disability, the effective date of such eligibility cannot precede the date in-patient admission began. Accordingly, an effective date prior to September 29, 2015 for a temporary total rating due to an in-patient admission in excess of 21 days for treatment for MDD under 38 C.F.R. § 4.29 is denied as a matter of law. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, Associate 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.