Citation Nr: 21039911 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-09 230A DATE: July 1, 2021 ORDER Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.29, based on hospital treatment in excess of 21 days for a service-connected disability from March 28, 2012 to July 16, 2012, is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30, based on surgical or other treatment necessitating convalescence for a service-connected disability from March 28, 2012 to July 16, 2012, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran was service connected for major depressive disorder with insomnia at the time he was admitted to a VA Mental Health Residential Rehabilitation Treatment Program from March 28, 2012 to July 16, 2012 for a mood disorder with inability to sleep. 2. The Veteran did not have any type of surgery or immobilization by cast when hospitalized for a service-connected disability at a VA Mental Health Residential Rehabilitation Treatment Program from March 28, 2012 to July 16, 2012. CONCLUSIONS OF LAW 1. The criteria for the assignment of a temporary total rating under the provisions of 38 C.F.R. § 4.29, based on hospital treatment in excess of 21 days from March 28, 2012 to July 16, 2012 for a service-connected disability, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. 2. The criteria for the assignment of a temporary total rating under the provisions of 38 C.F.R. § 4.30, based on surgical or other treatment necessitating convalescence for a service-connected disability from March 28, 2012 to July 16, 2012, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1977 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held via videoconference in August 2016 before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of that hearing is associated with the claims file. The Veteran was afforded the opportunity for a new hearing, which was held in July 2018 before the undersigned VLJ. This transcript is also associated with the claims file. In November 2016 and May 2019, the Board remanded these claims for additional development. The issues of entitlement to service connection for a gastrointestinal disorder and an acquired psychiatric disorder were granted in July 2020 and October 2020 rating decisions, and as such, are no longer on appeal. Temporary Total Ratings 1. Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.29, based on hospital treatment in excess of 21 days for a service-connected disability from March 28, 2012 to July 16, 2012. The Veteran seeks entitlement to a temporary total rating for his treatment at a VA Mental Health Residential Rehabilitation Treatment Program, which spanned from March 28, 2012 to July 16, 2012, on the premise that the treatment exceeding 21 days was to treat a service-connected disability. A temporary total disability rating will be assigned when it is established that one or more service-connected disabilities 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. Domiciliary care is defined as either a temporary home to a Veteran, embracing the furnishing of shelter, food, clothing, and other comforts of home, including necessary medical services; or, a day hospital program consisting of intensive supervised rehabilitation and treatment provided in a therapeutic residential setting for residents with mental health or substance abuse disorders, and co-occurring medical or psychosocial needs such as homelessness and unemployment. 38 C.F.R. § 17.30 (b)(1). If living in a domiciliary is a treatment requirement, the Veteran is eligible for benefits under 38 C.F.R. § 4.29. The record shows that the Veteran was admitted to a VA Mental Health Residential Rehabilitation Treatment Program for a mood disorder, not otherwise specified, and PTSD. The Veteran also had a diagnosis of alcohol and cocaine dependence, in remission. The treatment lasted from March 28, 2012 to July 16, 2012. The VA treatment records indicate that the VA domiciliary care focused on the Veteran's psychiatric symptoms, such as sad mood, decreased motivation, low energy, inability to sleep, and frustration. The Veteran was granted service connection in October 2020 for major depressive disorder with insomnia, effective August 2010; therefore, he was service connected for insomnia at the time of his hospitalization in 2012, wherein he was treated for an inability to sleep and a mood disorder. The Board notes that during the Veteran's hospital stay, he was admitted with a diagnosis of a mood disorder, not otherwise specified. The Veteran was ultimately service connected for major depressive disorder based on a September 2019 VA examination, at which time the Veteran was noted to meet the diagnostic criteria for major depressive disorder, according to the DSM-5. While the diagnosis of a mood disorder, not otherwise specified, was assigned at the time of his hospitalization in 2012, that particular diagnosis is no longer included in the DSM-5; however, major depressive disorder is a type of mood disorder. The Board finds the Veteran is entitled to a temporary total disability rating based on hospital treatment for a service-connected disability from March 28, 2012 to July 16, 2012, under 38 C.F.R. § 4.29. 2. Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30, based on surgical or other treatment necessitating convalescence for a service-connected disability from March 28, 2012 to July 16, 2012. The Veteran seeks entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and 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). As discussed above, the Veteran was admitted to a VA Mental Health Residential Rehabilitation Treatment Program for a mood disorder, not otherwise specified, and PTSD. The Veteran also had a diagnosis of alcohol and cocaine dependence, in remission. The treatment lasted from March 28, 2012 to July 16, 2012. The VA treatment records indicate that the VA domiciliary care focused on the Veteran's psychiatric symptoms, such as sad mood, decreased motivation, low energy, inability to sleep, and frustration. There is no evidence that the Veteran's hospital treatment for a service-connected disability resulted in any type of surgery, or immobilization by cast, without surgery, of one major joint or more. The Veteran has not asserted that he underwent any type of surgery or immobilization by cast when hospitalized. Accordingly, the criteria for a temporary total convalescent rating are not satisfied. See 38 C.F.R. § 4.30. REASONS FOR REMAND 3. Entitlement to service connection for sleep apnea. The Veteran seeks entitlement to service connection for sleep apnea. This issue was remanded by the Board in November 2016, at which time the RO was directed to afford the Veteran a VA examination and to obtain a medical opinion. The examiner was instructed to take the Veteran's statements regarding in-service and post-service symptoms into consideration. The Veteran was afforded a VA examination in February 2017, at which time the examiner opined that the Veteran's sleep apnea was less likely than not due to service. The examiner stated that a review of records did not show complaints related to symptoms of sleep apnea and he was diagnosed 31 years after he separated from service. In May 2019, the Board again remanded this claim, noting that the February 2017 VA examiner's opinion failed to discuss the Veteran's lay statements pertaining to sleep apnea symptoms. The Veteran was afforded a VA examination in September 2019, at which time the examiner again opined that the Veteran's sleep apnea was less likely than not due to service. The examiner explained that there are no medical records showing diagnosis or treatment for any sleep condition during active duty and a sleep study was not done until 2010, many years after the Veteran separated from duty. The examiner again failed to discuss the Veteran's lay statements regarding his sleep apnea symptoms. An addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum opinion for the Veteran's sleep apnea. The entire claims file should be made available to and reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep apnea had its onset in or is otherwise related to service. *The examiner is asked to specifically consider and discuss the Veteran's lay statements that he experienced symptoms of sleep apnea, such as snoring, catching his breath, not breathing during sleep, and waking up gagging, that began during active duty and were evidenced by fellow service members. See, e.g., October 2011 VA Form 21-4138; August 2016 BVA Hearing Transcript; February 2017 VA examination; July 2018 BVA Hearing Transcript; September 2019 VA examination. A complete rationale should be given for all opinions and conclusions expressed. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.