BVA9501008 DOCKET NO. 93-09 114 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a temporary total evaluation due to hospitalization and/or convalescence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The veteran served on active duty from August 1983 to December 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1992 from the St. Paul, Minnesota, Regional Office (RO), which denied a temporary total evaluation due to hospitalization. The RO also denied an increased rating for the service-connected residuals of a hyperflexion injury of the cervical spine and a total disability rating on the basis of individual unemployability. In the notice of disagreement, the veteran specifically disagreed with the denial of a temporary total evaluation for the period of time that he was hospitalized and the subsequent months that he was unable to work. At that time, the representative submitted a claim for an increased rating for the service-connected cervical spine disability and a total disability rating on the basis of individual unemployability. In June 1992, the RO continued the denial of a temporary total evaluation due to hospitalization. The RO also denied an increased rating and a total disability rating on the basis of individual unemployability. In July 1992, the veteran appealed the denial of a temporary total rating due to hospitalization. The veteran also argued that he should have been awarded a total rating for the period that he was unable to work, i.e., convalescence. In November 1992, the RO again continued the denial of a temporary total evaluation due to hospitalization and denied an increased rating and a total disability rating on the basis of individual unemployability. The RO also denied a temporary total rating due to convalescence. Thereafter, the veteran submitted additional statements in December 1992 and February 1993 expressing disagreement with the denial of temporary total ratings due to hospitalization and/or convalescence. The veteran did not appeal the denials of an increased rating and a total disability rating on the basis of individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting a temporary total rating for his service-connected residuals of a hyperflexion injury of the cervical spine due to hospitalization and/or convalescence. He maintains that the RO did not properly take into account or properly weigh the evidence of record, including Department of Veterans' Affairs (VA) clinical evidence and statements submitted in support of the claim. He argues that he is entitled to temporary total benefits because he was instructed by VA medical personnel not to return to work for approximately seven months. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 preponderance of the evidence is against the claim for a temporary total evaluation due to hospitalization and/or convalescence. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. 2. The evidence establishes that the veteran was not hospitalized or observed for his service-connected disability for a period in excess of twenty-one days. 3. Treatment of the veteran's service-connected disability did not involve surgery, and the probative evidence does not show immobilization by cast of one or more major joint. CONCLUSION OF LAW The criteria for a temporary total evaluation due to hospitalization and/or convalescence have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.29, 4.30 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Based upon the medical records showing hospitalization for the service-connected disability and the statements regarding post- hospitalization unemployment, the Board finds that the claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The evidence of record includes VA and private medical evidence and statements submitted in support of the claim. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. The veteran has not indicated that additional, relevant evidence has not yet been obtained. The facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the veteran has been satisfied. Id. The private medical evidence shows that the veteran was seen on October 6, 1991, for neck pain. He reported that he had fallen out of bed prior to seeking treatment. X-ray examination showed that previous neck fusions were intact and he was discharged that day. The Board notes that the veteran stated that he was discharged the next day. A notation dated the following day indicates that the symptoms were resolved but the veteran still had neck pain. The veteran was then admitted to the VA Medical Center, Minneapolis, Minnesota, from October 8, 1991, to October 11, 1991. Magnetic Resonance Imaging (MRI) showed evidence of a prior posterior spinal fusion from C1-to-C7, but did not show cord compression at C6-7, C7-to-T1, or T1-T2, or any foraminal stenosis at these levels. The veteran was discharged with medication for pain and advised to wear a cervical collar for comfort, and instructed to return to activities as tolerated. It was then noted that the veteran could return to work in three months and that there were no other restrictions on his activities. On March 6, 1992, the veteran was seen at the outpatient clinic with complaints of left hand numbness. He was admitted for evaluation on March 19, 1992. The records show that he underwent a physical examination and a myelogram. The diagnosis was dysesthesia and he was discharged on March 21, 1992, with instructions to return for follow-up in June 1992. A statement from a VA neurosurgeon was to the effect that while the neck was stable, the veteran was to avoid situations where an object might strike his neck. Accomodations in the work place were requested. He was seen on June 26, 1992, apparently for another MRI. The assessment was continued left distal parathesias/numbness without significant findings of stenosis on MRI. He was given additional medication and advised to return for a follow-up examination in six months. The initial question is whether the veteran is entitled to a temporary total evaluation due to hospitalization. The regulations provide that a total disability rating, i.e., a 100 percent rating, 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. The VA medical records establish that the veteran was hospitalized in October 1991 and March 1992 for residuals of his service-connected disability. On neither of these occasions was the veteran hospitalized for a period in excess of 21 days. The veteran has not disputed these dates of hospitalization, and he has not indicated that he was hospitalized for treatment of his service-connected disability on any other occasion since submitting his claim for increased benefits. The Board finds that the evidence establishes that the veteran was not hospitalized or observed for his service-connected disability for a period in excess of twenty-one days. Consequently, the Board concludes that the criteria for a temporary total evaluation due to hospitalization have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.29. The next question is whether the veteran is entitled to a temporary total evaluation for a period of convalescence. He argues that he was instructed by VA medical personnel not to return to work after discharge from the hospital. In support of his claim is a June 1992 statement from a VA employee, presumably a physician, indicating that on discharge in October 1991 the veteran was advised to return to work following a three month convalescent period. He argues that his temporary unemployability was following a period of hospitalization for his service-connected disability. He also argues that the he was placed in a cervical collar and this constitutes a "cast" as outlined in 38 C.F.R. § 4.30. The regulations provide that a total disability rating will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The VA hospitalization and outpatient records, dated from October 1991 to June 1992, do not show that surgery was performed. In fact, the October 1991 report states that the case was discussed with two additional VA physicians and it was determined that surgical intervention was not necessary. The veteran was advised to wear a cervical collar for comfort and instructed to return to activities as tolerated. There is no indication that the veteran was prescribed a cervical collar in order to immobilize one or more major joints. Although the physicians noted that the veteran could return to work in three months, there were no other restrictions on his activities. The veteran's February 1993 statement that he was told by the VA physician to keep the cervical collar until the next visit, which he reported as six months, does not establish that treatment of his service- connected disability resulted in immobilization by cast of one major joint or more. Additionally, the Board finds that the veteran's statement lacks probative value to the extent that he is claiming that the October 1991 medical treatment resulted in deliberate immobilization of his cervical spine. The records clearly show that he was advised to wear a cervical collar "prn," i.e., as necessary, for comfort. The remaining records and statements in support of his claim also do not show that the inpatient and treatment resulted in immobilization of one major joint or more. The Board finds that treatment of the veteran's service-connected disability did not involve surgery, and the probative evidence does not show immobilization by cast of one or more major joint. Consequently, the Board concludes that the evidence is not evenly balanced and the criteria for a temporary total evaluation due to convalescence have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.30. ORDER Entitlement to a temporary total evaluation due to hospitalization and/or convalescence is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.