Citation Nr: 0006827	
Decision Date: 03/14/00    Archive Date: 03/17/00

DOCKET NO.  98-05 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Entitlement to a temporary total disability rating based on 
the need for convalescence following lumbar disc surgery in 
October 1995.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Allen, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1979 to August 
1983.  This matter comes before the Board of Veterans' 
Appeals (Board) on appeal from a March 1997 rating decision 
of the Department of Veterans Affairs (VA), Regional Office 
(RO), in Chicago, Illinois, which denied a claim by the 
veteran seeking entitlement to a temporary total disability 
rating based on the need for convalescence following lumbar 
disc surgery in October 1995.

The Board notes that the veteran's accredited representative 
argues that issues of entitlement to an increased rating for 
low back pain and whether new and material evidence has been 
submitted to reopen a claim of entitlement to service 
connection for lumbar disc disease are also before the Board.  
In this regard, the Board finds that the veteran submitted a 
claim involving these issues in October 1995, and that a 
rating decision denying the claims was rendered by the RO in 
March 1996.  In July 1996 the veteran submitted a Notice of 
Disagreement.  The RO issued a Statement of the Case in 
September 1996.  The claims file contains no Substantive 
Appeal pertaining to the issues of entitlement to an 
increased disability rating for low back pain and whether new 
and material evidence has been submitted to reopen a claim of 
entitlement to service connection for lumbar disc disease.  
Therefore, those issue are not before the Board.  38 U.S.C.A. 
§ 7105(d)(3)  (West 1991); 38 C.F.R. § 20.200 (1999).  The 
veteran is not prejudiced by the Board's determination in 
this matter because he has not been deprived of the 
opportunity to submit arguments on the issue.  See Bernard v. 
Brown, 4 Vet. App. 384  (1993); VAOPGCPREC 9-99  (August 18, 
1999).  During a December 1999 Travel Board hearing and in 
his representative's February 2000 informal brief 
presentation, the subject of Board jurisdiction of the issues 
of entitlement to an increased disability rating for service-
connected low back pain and of entitlement to secondary 
service connection for lumbar disc disease, was addressed and 
arguments were put forth.  During the Travel Board hearing, 
the veteran was informed that his claim for an increased 
disability rating for low back pain, to include secondary 
service connection for lumbar disc disease, was not developed 
for appellate review.

It appears from a March 1998 statement by the veteran, as 
well as from arguments put forth by his representative during 
the December 1999 Travel Board hearing and in a February 2000 
informal brief presentation, that the veteran has initiated 
still another claim seeking an increased rating for low back 
pain and secondary service connection for lumbar disc 
disease.  Such claim has not yet been addressed by the RO 
and, thus, is not before the Board at this time.  It is 
referred to the RO for proper action.

A Travel Board hearing was held on December 7, 1999, before 
George Senyk, a member of the Board who was designated by the 
Chairman to conduct the hearing pursuant to 38 U.S.C.A. 
§ 7102(b) (West 1991 & Supp. 1999) and who is rendering the 
determination in this case.


FINDINGS OF FACT

1.  All evidence necessary for an equitable adjudication of 
the veteran's claim has been developed.

2.  The veteran's October 1995 surgery and associated 
subsequent period of convalescence were not for treatment of 
a service-connected disability.


CONCLUSION OF LAW

A temporary total disability rating for convalescence 
following lumbar disc surgery in October 1995 is not 
warranted.  38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 
(1999).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Laws & Regulations

A total disability rating is for assignment when it is 
established, by report at hospital discharge or outpatient 
release, that treatment of a service-connected disability 
resulted in (1) surgery necessitating at least one month of 
convalescence; (2) surgery with severe postoperative 
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 for house confinement or 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  (1999).  If warranted, 
entitlement to such a total rating is authorized for one, 
two, or three months of convalescence, beginning the first 
day of the month following such hospital discharge or 
outpatient release.  Id.  The total rating may, under certain 
circumstances, be extended for a total of 12 months.  Id.

A total disability rating may also be assigned without regard 
to other provisions of the rating schedule when it is 
established that a service-connected disability has required 
hospital treatment at 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  (1999).
 
In deciding claims for VA benefits, "when there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant."  
38 U.S.C.A. § 5107(b)  (West 1991).

II.  Analysis

The threshold requirement in establishing entitlement to a 
temporary total rating under 38 C.F.R. § 4.30, is that a 
period of convalescence must have been incurred due to 
treatment of a service-connected disability.  38 C.F.R. 
§ 4.30  (1999).
Private medical records reflect that the veteran underwent 
surgery on his lumbar spine on October 6, 1995.  The 
procedure was to treat a herniated disc and consisted of a 
hemilaminectomy at L4-L5, with diskectomy and decompression 
of nerve root.  

It is clear from the medical evidence of record that the 
veteran's surgery in October 1995 was for a herniated disc in 
his lumbar spine, alternatively diagnosed as lumbar disc 
disease.  Such disability is not service-connected; in fact, 
service connection for such disability has specifically been 
denied by the RO.

Although service-connection is established for "low back 
pain," which was diagnosed as lumbosacral strain during 
service and is rated as lumbosacral strain, there is no 
medical evidence supporting the veteran's arguments that the 
surgery in October 1995 was for back pain other than that 
associated with the herniated disc.  To the extent that the 
veteran has presented such arguments in his testimony at the 
hearing on appeal in December 1999, such testimony is not 
competent evidence because he is a layperson not trained and 
has not established that he has any expertise in medical 
matters.  Inasmuch as the hospitalization and surgery in 
October 1995 were not for treatment of service connected 
disability, the threshold requirement for establishing 
entitlement to benefits under 38 C.F.R. § 4.30 is not met, 
and such benefits are not warranted.  


ORDER

A temporary total disability rating based on a need for 
convalescence following lumbar disc surgery in October 1995 
is denied.



		
	GEORGE R. SENYK
	Member, Board of Veterans' Appeals