Citation NR: 9802419 Decision Date: 01/28/98 Archive Date: 02/02/98 DOCKET NO. 93-24 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for a period of hospitalization in 1990. 2. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following cardiovascular surgery in 1990. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gallagher INTRODUCTION The veteran served on active duty from July 1942 to November 1945, from January 1946 to December 1948, and from March 1949 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) from a December 1992 letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Mongomery, Alabama, which denied a temporary total rating under the provisions of 38 C.F.R. § 4.29 for a period of hospitalization in 1990 and denied a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following cardiovascular surgery in 1990. The Board remanded the case for further development in September 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claims for an increased disability rating for a temporary total rating under the provisions of 38 C.F.R. § 4.29 for a period of hospitalization in 1990 and for a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following cardiovascular surgery in 1990. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter and for the following reasons and bases, it is the decision of the Board that the claim for a temporary total rating under 38 C.F.R. §§ 4.29 and 4.30 must be denied as a matter of law. FINDINGS OF FACT 1. The veteran was hospitalized for a period in excess of 21 days for treatment of a service-connected disability, specifically for service-connected coronary artery disease, from November 19, 1990, to December 11, 1990. 2. The earliest date that the RO may be said to have received an informal claim for an increased disability rating for service-connected coronary artery disease, to include a claim for a temporary total rating under 38 C.F.R. §§ 4.29 and 4.30, is July 22, 1992, the date of receipt of a hospital report from Loyola University Medical Center showing treatment for coronary artery disease to include triple bypass heart surgery. CONCLUSION OF LAW A temporary total rating under sections 4.29 and 4.30 must be denied because the claim for that benefit was received more than one year after the date of admission to the hospital. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. §§ 3.157, 3.400(o)(2), 4.29, 4.30 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background. The veteran has been service-connected for hypertension effective from September 1972. In July 1992, the RO in Montgomery, Alabama, received statements from the veteran requesting a reevaluation of his rating for service-connected hypertension, informing VA of a change in his address, and requesting that his VA records be transfered from the RO in Chicago to the RO in Mongomery. The Mongomery RO also received VA Forms 21-4142, Authorization for Release of Information, which were signed by the veteran in July 1992, authorizing release of medical records from Loyola University Medical Center in Chicago and from West Florida Medical Center in Pensecola, Florida, to the VA. In July 1992, the RO in Mongomery received medical records from Loyola University Medical Center in Chicago showing that the veteran was hospitalized there from November 30, 1990, to December 11, 1990, with a principal diagnosis of coronary artery disease. The records show that while hospitalized the veteran underwent cardiovascular surgery, specifically, a “coronary artery bypass graft times three”. VA Form 70-7216a, Request for and/or Notice of Transfer of Veterans Records, shows that the veteran’s claim file was transfered from the RO in Chicago to the RO in Montgomery in August 1992. In September 1992, the RO in Mongomery granted an increased disability rating for service-connected hypertension, now rated as coronary artery disease, and assigned a 30 percent rating. The RO also denied service connection for diabetes mellitus. In November 1992, the veteran submitted a statement to the RO requesting, among other things, “Para[graph] 29 benefits for my period of convalescence after my surgery.” In December 1992, the RO sent the veteran a letter stating, We cannot award you a 100 percent rating, for the open heart surgery, done in December 1990. We cannot award you Paragraph 30 since the surgery was done more than one year prior to your claim. The RO referred the veteran to an enclosed form which explained his appeal rights. In December 1992, the RO received from the veteran a notice of disagreement with its decision to deny a temporary total rating. The veteran stated, “I was not aware of any limitation on filing for benefits for service-connected disabilities.” In February 1993, the RO issued a statement of the case which included the regulatory provisions of both 38 C.F.R. § 4.29 and § 4.30. In March 1993, the RO received a VA Form 9 substantive appeal in which the veteran stated, in pertinent part, I contend that I informed the D.V.A. Regional Office, of Chicago, Ill., within one to two weeks of di[s]charge from the hospital. . . . I believe the C-Files from the [RO] Chicago will show that the VA was informed of said surgery, for my noted [service-connected] condition. I informed the [RO] of Chicago, Ill. that I was relocating, and to have my VA records transferred to the Alabama [RO], for processing the claim for the required surgery (and hospitalization). At a June 1993 personal hearing, the veteran submitted an affidavit from John C. Richards, an attorney from Illinois, stating, in pertinent part, that he telephoned the RO in Chicago on behalf of the veteran in June 1991 and informed a service representative of the veteran’s name, claim number, that the veteran was receiving a 10 percent disability for high blood pressure, that the veteran had undergone triple heart bypass surgery at Loyola University Hospital, and that the veteran desired to file for an increased in disability. Mr. Richards also stated that he notified the VA representative of the veteran’s new address in Alabama and the VA representative assured him that the necessary forms would be sent to the veteran. The veteran never received the forms and several months later, Mr. Richards stated that he repeated the same procedure with the VA. Mr. Richards stated that he was not informed that the veteran was required to file the claim within one year from the date of the operation and accordingly he never notified the veteran of this requirement. Mr. Richards stated that he had no further contact with the veteran relative to the claim and that on May 30, 1992, Mr. Richards retired from the practice of law and therefore all his files had been disposed of and therefore no written documentation is available. The veteran testified that he also called the RO in Chicago himself to request application forms and that this call was placed sometime in February, March, or April of 1991. He testified that the VA employee he spoke with did not tell him that he could write a letter to VA to claim benefits and did not need a certain form and that the employee never told him there was a one-year time limit to file a claim. In July 1993, the VA hearing officer confirmed and continued the denial of the claim for benefits under sections 4.29 and 4.30 of the regulations. In September 1995, the Board remanded the claim for further development of the evidence such as obtaining additional medical records including those from West Florida Medical Center in Pensacola for which the veteran had provided a release form in July 1992 but which were not in the claims file. Noting that 38 C.F.R. § 4.29 provides for a total disability rating to be assigned for hospital treatment of a service-connected disability for a period in excess or 21 days at a VA or “an approved hospital”, the Board requested the RO to verify whether the veteran’s treatment at Highland Park Hospital and Loyola University Medical Center was “approved” by VA. In October 1995, the RO wrote the veteran a letter in which it asked him whether VA had approved his treatment at the two private hospitals. In November 1995, the RO received a reply from the veteran to its inquiry in which he stated that, after experiencing chest pains in November 1990, he reported to the U.S. Army Medical Dispensary located at Fort Sheridan, Illinois, and a doctor there sent him to Highland Park Hospital, Highland Park, Illinois, where, after several days, he was given an angiogram. He was transferred to Loyola University Medical Center where he underwent a triple bypass heart operation on December 3, 1990, and he was discharged from the hospital eight or nine days later. The veteran stated that since moving to Alabama his condition has been followed by doctors at West Florida Medical Center in Pensacola whom he stated he has seen periodically since June 1991. The veteran also stated, “Due to my medical condition, plus the fact that I did not know at the time that the Department of Veterans Affairs needed to refer treatment at Highland Park Hospital and Loyola University Medical Center, no approval was sought.” The RO obtained additional medical records pursuant to the Board’s remand, and those records show, as was documented in the veteran’s statement, that he was admitted to Highland Park Hospital with an admitting diagnosis of “chest pain, [rule out myocardial infarction].” The veteran was transferred to Loyola University Medical Center on November 30, 1990, and he underwent the triple bypass surgery on December 3, 1990. He was discharged from Loyola University Medical Center on December 11, 1990. II. Analysis. The Board notes at the outset that the veteran was hospitalized at Highland Park Hospital and Loyola University Medical Center for a period in excess of 21 days, i.e., from November 19, 1990, to December 11, 1990, for a service-connected disability and these points are not in dispute. Total disability ratings may be assigned for periods of hospitalization for treatment of a service-connected disability under section 4.29 of the regulations and for periods of convalescence following treatment, including surgical treatment, of a service-connected disability under section 4.30. In this case, the RO denied a temporary total rating under 4.29 and 4.30 because, as articulated in the February 1993 statement of the case, “[t]he veteran’s claim for a temporary total evaluation based on Paragraph 29 and 30 of the rating schedule was not received within one year from the date of the open heart surgery.” (Emphasis added.) The regulations cited in support of this decision were 38 C.F.R. §§ 4.3, 4.29, 4.30, and 3.400(B)(2). Following the Board’s remand in September 1995, the RO continued its denial of the temporary total rating under 4.29 and 4.30 because, as articulated in the June 1997 supplemental statement of the case, “the summary of hospitalization was first received on July 22, 1992, which is more than one year following actual treatment.” In the June 1997 supplemental statement of the case, the regulation that was cited in support of this reason for the denial of the benefit was 38 C.F.R. § 3.157, the provisions of which concern when a report of hospitalization may be accepted by VA as a claim for an increase and what effective date should be assigned should an increased disability rating be granted based on such a report. The issue in this case is whether denying the benefit sought is the appropriate action for VA adjudicators to take when a veteran submits a hospital report, which shows treatment in excess of 21 days for a service-connected disability, more than one-year after that treatment was rendered and, if so, what provision of law authorizes this action. Beginning with the regulations cited by the RO, the Board notes that section 4.3 refers to the reasonable doubt doctrine and is unhelpful with regard to the issue in this case. Sections 4.29 and 4.30 are pertinent because they are the provisions under which the veteran is seeking benefits, i.e., they are the regulations that govern the type or types of benefits sought and to this extent they were appropriately listed in the SOC. There is no section 3.400(B)(2), and section 3.400(b)(2) is inapplicable to this case because it provides the effective date provisions for an award of service connection for a disability based on a claim for direct service connection or based on a claim for presumptive service connection. In this regard, the Board notes that a claim for a temporary total rating is not a claim for service connection for a disability, but rather it is a claim for a certain type of increased rating, i.e., a temporary total rating. In other words, a temporary total rating is a type of increase in VA compensation benefits just as an increased rating based on schedular criteria for a particular disability is another type and an increased rating based on individual unemployability is another. Moreover, regulations governing effective dates, generally speaking, provide certain rules for choosing among different dates for effectuating an award of benefits under different circumstances and do not usually provide a rationale for denying the benefit entirely. However, some effective date provisions contain language similar to the “one-year” rule used by the RO as the basis for denial of the temporary total rating in this case. For example, section 3.400(o)(2), which governs the assignment of effective dates for awards of increased disability compensation, provides a “one-year” rule of its own. This rule was the subject of interpretation in a decision of the United States Court of Veterans Appeals (Court) in Harper v. Brown, 10 Vet. App. 125 (1997). As noted in Harper, the law provides a general rule which should be followed unless the law provides a specific exception to the general rule to govern in certain circumstances. 38 U.S.C.A. § 5110(a) (West 1991); Harper, 10 Vet. App. at 127. The general rule is that the effective date of an award of VA benefits based on an original claim, a claim reopened after final adjudication, or a claim for increase “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(o)(1) (1996). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of claim. The law provides one exception to this general rule for claims for increased disability ratings for VA compensation benefits. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1996). If the increase in disability occurred prior to the date of receipt of claim, the RO may assign the actual date that the increase is shown by the evidence to have occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1996); see Harper, 10 Vet. App. at 126. Thus, three possible effective dates may be assigned for an award of increased disability compensation depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) should be assigned (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) should be assigned (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (otherwise date of claim) should be assigned (38 C.F.R. § 3.400(o)(2)). See Harper, 10 Vet. App. at 126 (1997) (holding that the phrase “otherwise, date of receipt of claim” in section 3.400(o)(2) refers to the situation in which a factually ascertainable increase occurred more than one year prior to the receipt of the claim for such an increase). Section 4.29(a) provides that, subject to the provisions of paragraphs (d), (e), and (f) of section 4.29, the “increased rating” -- i.e., the temporary total rating for the period of hospitalization -- will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge. This effective date provision is reiterated for benefits awarded under sections 4.29 and 4.30 in section 3.401(h) of the regulations, although that section does not specify a termination date. Section 4.29(d) provides, “On these total ratings [VA] regulations governing effective dates for increased benefits will control.” This provision indicates that section 3.400(o)(1) and (o)(2) is relevant to claims for temporary total ratings. Section 3.157 -- the regulation cited in the June 1997 supplemental statement of the case as the controlling authority for the RO’s decision that the claim for a temporary total rating must be denied because “the summary of hospitalization was first received on July 22, 1992, which is more than one year following actual treatment” (emphasis added) -- begins by reciting the general effective date rule for compensation and pension benefits: “Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of claim or the date when entitlement arose, whichever is later.” 38 C.F.R. § 3.157(a) (1996), It also provides, A report of . . . hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under existing law . . . if the report relates to a disability which may establish entitlement. Acceptance of a report of . . . treatment as a claim for an increase is subject to . . . the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. This clause of section 3.157 does not expressly provide that a benefit will be denied based on the date of the report or the date of the receipt of the report but merely states that “retroactive benefits” may be in order from the date of the report or one year prior to the date of the receipt of the report. In this regard, the Board notes that the submission of the hospital report from Loyola University Medical Center in July 1992, more than one year after the period of hospitalization from November to December 1990, did not bar the RO from granting an increased schedular rating for coronary artery disease, which increased rating -- from 10 percent to 30 percent --was granted in the September 1992 rating decision. However, the date of the submission of the report did control the date that was chosen by the RO as the effective date of the increased rating. Given that the report showed an increase in the severity of the service-connected disability, the date of admission to the hospital -- November 19, 1990, -- could have been assigned as the effective date for the increase to 30 percent under 38 C.F.R. § 3.400(o)(2) had the report been submitted within one year from that date (“Earliest date as of which it is factually ascertainable that an increase in disability occurred if claim is received within 1 year from such date . . . .”). However, because the report was not submitted until July 22, 1992, the RO appropriately assigned July 22, 1992, as the effective date for the increased rating to 30 percent under 38 C.F.R. § 3.400(o)(2) (“. . . otherwise, date of receipt of claim.”). This result was consistent with the Court’s interpretation of 38 C.F.R. § 3.40(o)(2) in Harper. Harper, 10 Vet. App. at 126 (holding that the phrase “otherwise, date of receipt of claim” in section 3.400(o)(2) refers to the situation in which a factually ascertainable increase occurred more than one year prior to the receipt of the claim for such an increase). The benefit sought was not denied, but the effective date assigned was the date of receipt of claim. Why should the RO not have done likewise -- i.e., award the benefit sought and assign the date of receipt of claim as the effective date for that award -- with regard to the claim for the temporary total rating under 38 C.F.R. § 4.29? Subsection (d) expressly provides that the same effective date regulations -- i.e., those governing increased ratings, will control for section 4.29 benefits. 38 C.F.R. § 4.29(d) (1996). Instructions in the VA ADJUDICATION PROCEDURE MANUAL, M21-1, (the M21-1) are ambiguous: c. Effective Date (1) Date of Hospital Admission. Make the total evaluation effective the date of hospital admission for: . . . . (c) Unauthorized non-VA hospitalizations if the veteran is service connected at the time of admission and a claim for increase is received within 1 year of the date of admission. . . . . (2) Date of Claim. The effective date will be the date of claim when a non-VA hospitalization notice is received by VA more than 1 year after the date of admission (38 CFR 3.157). VA ADJUDICATION PROCEDURE MANUAL, M21-1, part VI, para. 10.02c., Change 45 (May 31, 1996) (boldface type in original; italics added for emphasis). For the reasons and bases articulated below, the Board concludes that the RO was correct in denying the temporary total rating in this case. The principal difference between an increased disability rating on a schedular basis and a temporary total rating under 38 C.F.R. § 4.29 is a difference in the nature of the increase in severity of disability that the two benefits are intended to compensate. The latter is intended to compensate the veteran for an increase in severity of disability that is totally incapacitating in degree but of a relative short course, i.e., of a “temporary” nature, whereas the former contemplates an increase in severity of disability which, although not necessarily totally incapacitating, is more “enduring” in nature and will be subject to reduction only if evidence later shows improvement in the condition. Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder, and therefore, by “totally incapacitating” in the context of this discussion, the Board means a degree of disability that renders the veteran unable to work, i.e., a total reduction in earning capacity. 38 U.S.C.A. § 1155 (West 1991). The temporary total rating is assigned for a period of hospitalization in excess of 21 days because, regardless of the ordinary level of severity of the service-connected disability, a period of hospitalization for more than 21 days for treatment for the service-connected disability means that the veteran’s earning capacity was totally reduced during the nearly month-long period that he could not work due to the hospitalization. The increased schedular rating is assigned where the ordinary level of severity of the service-connected disability is shown by the evidence to have increased to an extent sufficient to warrant the assignment of the next level of compensation and where the increase in severity is likely to continue for sometime -- usually at least a year or two -- when VA, if it appears that the veteran’s disability is likely to improve, may call the veteran for an examination to see if it has improved, thereby possibly warranting a reduction in compensation. 38 C.F.R. § 3.327 (1996). Awarding a temporary total rating more than a year after the period of hospitalization is, in a sense, contrary to the purpose of the award which is to compensate the veteran totally and immediately while he is out of work because of the hospitalization. The regulations and the procedures outlined in the M21-1 contemplate receipt of an application during or immediately following the period of hospitalization for this benefit because they provide for the evaluation of evidence after the initial award for a possible extension of the total rating for one to six months for a period of convalescence and they provide for the preparation an “open rating” where “the report of the required hospitalization is received before hospital discharge”. 38 C.F.R. §§ 4.29(e), (f), 4.30 (1996); VA ADJUDICATION PROCEDURE MANUAL, M21-1, part VI, para. 10.02e., Change 45 (May 31, 1996). Moreover, the greater the time that elapses between the period of hospitalization and the application for the benefit, the less meaning the purpose and intention of the benefit has. For example, what course of action should VA take where a veteran submits a medical report showing a period of hospitalization in excess of 21 days for a service-connected disability ten years after the hospitalization rather than 18 months thereafter? Although the Court in Harper interpreted the phrase “otherwise, date of claim” in section 3.400(o)(2) to refer “to the situation in which a factually ascertainable increase occurred more than one year prior to the receipt of the claim for such increase,” that principle would not apply in a situation where the same level of disability was not still present at the time of receipt of the application because VA awards compensation benefits for “current” disability and levels of disability, not disability that existed in the past. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that Secretary’s and Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); 38 U.S.C.A. § 1110, 1131 (West 1991); see also Wright v. Gober, 10 Vet. App. 343, 348 (1997); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). In Wright, which involved a challenge by the veteran to the constitutionality of an effective date provision, the Court explained the principle underlying a “one-year” rule similar to the one in this case, Under 38 U.S.C. § 5110(b)(1), Congress decided that veterans awarded disability compensation based on a claim filed within one year after separation should receive retroactive benefits. This provision appears to give veterans who may be disabled at the time of discharge some breathing room to file a claim without losing any possible benefits. Congress could have several legitimate reasons for not extending this benefit for a period greater than one year. The most obvious reasons would be to ease the financial burden on the nation and the administrative burden on the Secretary. It is reasonable to believe that evidentiary findings will become more difficult after one year. For example, not only does a rating board establish service connection, but it must rate the degree of a veteran’s disability. It is logical to presume that a veteran’s degree of disability within one year after discharge is the same as at the time of discharge. Applying the same presumption twenty or thirty years thereafter would not be reasonable. Wright, 10 Vet. App. at 348 (emphasis added). Similarly, the Board notes that, in a case for a claim for an increased disability rating on a schedular basis, where “a factually ascertainable increase occurred more than one year prior to the receipt of the claim for such an increase”, VA may conclude -- depending on how much more than one year prior to the receipt of the claim the increase is shown to have occurred -- that a more recent examination is needed to confirm whether that level of increased severity is still current or whether the disability has improved before assigning the rating. If the level of increased severity was shown to be current, the increased disability rating could be granted although the effective date would still be the date of receipt of the claim, as in Harper, and not an earlier date. Harper, 10 Vet. App. at 126. If the level of increased severity were not shown to be current, however, the claim should be denied. In the case of claim for a temporary total rating, once the veteran has been released from the hospital and has recuperated after a period of convalescence, if any, the total level of disability is no longer actually current. Nevertheless, if the claim for that benefit is received within one year from the date of hospital admission, it is reasonable to treat the claim the same way other types of increased rating claims are treated under the effective date regulations and award the benefit back to the date the increase was factually ascertainable, i.e., the date of admission to the hospital. This award and effective date would be consistent with the provisions in both sections 3.400(o)(2) and 4.29. Unlike the claim for an increase in the schedular rating for a disability where the level of disability is considered continuous unless improvement is shown, the total level of severity in a claim for section 4.29 benefits would have actually terminated within a year of hospital admission because of the short duration of the period of hospitalization in a “temporary” total rating case. Therefore, it is not unreasonable to distinguish claims for this type of increased rating from other types of increased rating claims and deny the benefit sought if the report is not received within one year of a factually ascertainable increase in disability. The alternative interpretation -- to award the benefit and assign the date of receipt of claim as the effective date -- results in an absurdity that is contrary to the main purpose of VA disability compensation, i.e., to compensate “current” disability that results in a “current” reduction in earning capacity, because it would mean that a veteran who presented a medical report showing a period of hospitalization for a service-connected disability thirty or forty years earlier would be entitled to be compensated for that “temporary” level of disability in the distant past. Cf. Wright, 10 Vet. App. at 348. For these reasons, the Board concludes that the RO’s decision to deny a temporary total rating under sections 4.29 and 4.30 in this case because the veteran submitted the claim more than one year after the period of hospitalization is a reasonable and harmonious interpretation of the laws and regulations governing VA compensations benefits. To the extent that provisions of the M21-1 are ambiguous in this regard, they are superseded by the controlling provisions of the statute and regulations. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. §§ 3.400(o)(2), 4.29, 4.30 (1996); M21-1, part VI, para. 10.02e., Change 45 (May 31, 1996); see Wright, 10 Vet. App. at 348; cf. Harper, 10 Vet. App. at 126. In this regard, the veteran’s contention that he was unaware that his claim for benefits under sections 4.29 and 4.30 would be denied unless he submitted the claim within a year of the date of admission to the hospital has no bearing on whether or not the benefit should be allowed or denied. Claimants are often unaware of effective date and other regulations governing VA benefits when they claim those benefits. For example, veterans often believe that an award of service connection for a disability should be effective as of the date of discharge from active duty regardless of when the claim is submitted. However, the law provides otherwise, and the Board must interpret the law as it exists. See Owings v. Brown, 8 Vet. App. 17 (1995) (“This Court must interpret the law as it exists, and cannot “extend . . . benefits out of sympathy for a particular [claimant].”); Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Similarly, the veteran argues that when he telephoned the VA in 1991, he was not told of a time limit for submitting the claim for a temporary total rating and that the VA failed in its duty to assist him in this regard and that therefore his claim should be granted. However, even assuming that a VA employee had given him erroneous advice, the Court has made clear that “erroneous advice given by a government employee cannot be used to estop the government from denying benefits.” Johnson v. Brown, 9 Vet. App. 369, 377 (1996); Bone v. Brown, 9 Vet. App. 446, 448-49 (1996); Owings v. Brown, 8 Vet. App. 17, 23 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Walker v. Brown, 8 Vet. App. 356, 359 (1995). Finally, the veteran contends that his telephone call to VA in early 1991 and two telephone calls from his attorney in 1991 requesting that application form be sent for a claim for increased disability benefits constituted informal claims for an increased rating including a temporary total rating under sections 4.29 and 4.30 and that these claims were made within one year of the November 1990 to December 1990 period of hospitalization and therefore his claim should be granted. However, a “claim” is defined in the VA regulations, under 38 C.F.R. § 3.1(p), as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (1996) (emphasis added). Although 38 C.F.R. § 3.155(a) states that “[a]ny communication or action” indicating an intent to apply for benefits may be considered as an informal claim” when read in conjunction with 38 C.F.R. §§ 3.1(p) and 3.155(b) it is clear that “written” communication is necessary. See 38 C.F.R. § 3.155(b) (1996) (referring to the time the communication was “written”). ORDER A temporary total rating under the provisions of 38 C.F.R. § 4.29 for a period of hospitalization in 1990 is denied. A temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following cardiovascular surgery in 1990 is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -