Citation Nr: 21011369 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-44 163 DATE: March 1, 2021 ORDER A temporary total convalescent rating for an October 2009 hysterectomy is denied. FINDING OF FACT The Veteran’s hysterectomy was not service connected at the time of the October 2009 surgery. CONCLUSION OF LAW The criteria for a temporary total convalescent rating for an October 2009 hysterectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.29, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1990 to December 1990; January 1991 to June 1991; and from December 2003 to March 2005. The case was remanded in October 2019 for evidentiary development and for a new medical examination and opinion. All actions ordered by the remand have been accomplished. Effective December 16, 2019, the Veteran is in receipt of a 100 percent schedular evaluation for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), and separate grants of special monthly compensation on various bases. In a July 2020 rating decision, the RO granted service connection for the Veteran’s dysfunctional uterine bleeding with hysterectomy, Female Sexual Arousal Disorder, and residuals of a punctured bladder, effective September 13, 2012. The issue of service connection for these disabilities is no longer in appeal status. In a November 2020 letter, the Veteran was informed that the Veterans Law Judge (VLJ) who conducted her January 2019 Board hearing was no longer available to participate in the adjudication of her appeal. The Veteran was given the option to appear at another hearing with a different VLJ. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (holding that an appellant must be provided the opportunity for a hearing before all VLJs involved in a panel decision). In a January 2021 statement, the Veteran respectfully declined the option for an additional hearing and instructed the Board to consider her case based on the evidence of record. Temporary Total Disability Ratings Temporary total disability ratings (TTRs) are to be assigned under 38 C.F.R. § 4.29 if a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. A TTR can also be assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative 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 of house confinement, 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). Entitlement to a temporary total convalescent rating for an October 2009 hysterectomy The Veteran seeks a TTR for her October 2009 hysterectomy surgery. In December 2005 the Veteran filed a claim for “female problems.” In a May 2007 rating decision, the RO denied the claim. The Veteran did not appeal this decision and the decision became final. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In May 2010 the Veteran petitioned to reopen her claim, now claimed as dysfunctional uterine bleeding. In a September 2010 rating, the RO denied reopening because the evidence was not new and material. The Veteran did not appeal this decision either and thus the decision to deny reopening became final. See Id. On September 13, 2012, the Veteran filed a claim for dysfunctional uterine bleeding, to include her decision to undergo a hysterectomy; residual complications of the hysterectomy surgery, to include a rupture of her bladder; and a temporary total disability rating for her October 2009 hysterectomy surgery and convalescence. Although these claims were initially denied, the Regional Office (RO) granted the Veteran’s claims of service connection for dysfunctional uterine bleeding with hysterectomy, Female Sexual Arousal Disorder, and residuals of a punctured bladder, effective September 13, 2012, after the Board granted reopening of her dysfunctional uterine bleeding claim in the October 2019 Board decision. The claim for TTR is denied. The Veteran’s hysterectomy was not service connected at the time of the October 2009 surgery. Temporary total ratings under 38 C.F.R. §§ 4.29 and 4.30 are only awarded for surgeries or treatment pertaining to a service-connected disability. Because the Veteran was not service-connected for dysfunctional uterine bleeding with hysterectomy or residuals of a ruptured bladder at the time of the surgery, the claim for a TTR based on hospitalization or convalescence must be denied as a matter of law. See 38 C.F.R. §§ 4.29, 4.30. Because the law is dispositive on this matter, the claim must be denied due to a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. at 430. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.