Citation Nr: 0003450 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-26 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for cervical strain, currently evaluated as 10 percent disabling. 2. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for a period of hospitalization from August 12, 1996 to February 22, 1997. 3. Entitlement to vocational rehabilitation training under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The appellant served on active duty from September 1976 to June 1978. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has determined that it is necessary to remand the issue of entitlement to an increased rating for the service- connected cervical spine strain; therefore, this issue will be addressed in the REMAND appended to the end of this decision. The Board defers consideration of the vocational rehabilitation issue in light of the remanded increased rating issue. FINDING OF FACT The veteran's period of hospitalization at a VA facility from August 12, 1996 to February 22, 1997, is not shown to have involved treatment for any service-connected disability, to include cervical spine strain, for any 21-day period therein. CONCLUSION OF LAW The requirements for a temporary total rating in accordance with 38 C.F.R. § 4.29 based on VA hospitalization from August 12, 1996 to February 22, 1997, have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant's claim for a temporary total disability rating for a period of VA hospitalization, from August 12, 1996 to February 22, 1997, is plausible and capable of substantiation and, thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that all relevant evidence has been obtained regarding the appellant's claim and that no further assistance to him with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). By rating decision dated April 1982, the RO awarded service connection for a cervical spine strain. The veteran has no other service connected disabilities. 38 U.S.C.A. § 101(16) (West 1991); 38 C.F.R. § 3.1(k) (1999). According to a hospital discharge summary dated in February 1997, the veteran was hospitalized at the VA Medical Center (VAMC) in Tomah, Wisconsin, from August 12, 1996 through February 22, 1997. He was admitted as a transfer patient from the VAMC in Milwaukee Wisconsin, where he had been admitted for diabetes mellitus, ketoacidosis. Upon admission, a history of chronic schizophrenia for 20 years was noted; the veteran's chief complaint was that he was homeless and suffering from diabetes mellitus. The diagnosis on admission was schizophrenia, and the veteran was admitted to the psychiatry ward. On February 22, 1997, he was discharged. The diagnosis at discharge on Axis I was Schizoaffective disorder, bipolar type and PTSD provisional. The following additional conditions were also noted on Axis III: 1) history of anemia; 2) homelessness; and 3) questionable diabetes mellitus. It is noted that these records contained no reference to the veteran's service connected cervical spine strain. Upon request, the Tomah VAMC provided a "21 day certificate" to the RO in February 1997, which indicated that the veteran had been hospitalized for 21 consecutive days from August 12, 1996 to February 8, 1997, and the major diagnosis for that period of time was schizoaffective disorder, bipolar type. The veteran essentially contends that he was also hospitalized and treated for his service connected cervical spine strain for over 21 days during this hospitalization; and therefore, should be entitled to a total temporary evaluation under 38 C.F.R. § 4.29. Specifically, he alleges that he was given medication, Tylenol 3, daily during his hospitalization for neck pain, and was given physical therapy during the hospitalization as well. In support of his contentions, the veteran cites to a VA Physical Therapy (PT) Note, dated August 28, 1996. The VA "Physical Therapy Initial Evaluation" report, dated August 28, 1996, indicated the veteran was seen for complaint of chronic neck pain and headaches beginning on August 19. The assessment was headaches with chronic neck pain. The veteran was instructed in and given instructions sheets for a home exercise program. He was also to be seen three times a week, for two weeks, for ultrasound and hydrocollator pack therapy. Pursuant to 38 C.F.R. § 4.29 (1999), a total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA hospital for a period in excess of 21 days. Even if the admission was not for treatment of such disability, such an award can be made if treatment for a service-connected disorder is instituted and continued for a period in excess of 21 days. Id. In this case, the period of hospitalization for which the veteran seeks a total disability rating was not required for treatment of any service-connected disability. There is no reference in the hospital records to any cervical spine problem at admission, nor at discharge. The hospital summary reflects that treatment for the period in question was for the veteran's psychiatric disabilities, diagnosed as schizoaffective disorder, bipolar type, and PTSD provisional. The veteran is not service connected for these disabilities. Additionally, the veteran's treating physicians at discharge noted the veteran's history of anemia, homelessness, and questionable diabetes mellitus. Although, he received physical therapy three times a week, for two weeks for his service-connected cervical stain during this hospitalization, there is no evidence that hospitalized was required for this treatment. In numerous written statements and testimony provided at several personal hearings, the veteran has stated his belief that he was hospitalized from August 1996 to February 1997 for treatment of his service-connected cervical spine strain. However, the veteran and his representative do not have the necessary medical qualifications, training or expertise to give probative opinions on medical issues related to his treatment. Espiritu v. Derwinski, 2 Vet. App. 363 (1992); Colvin v. Derwinski, 1 Vet. App. 171 (1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996). Thus, the Board concludes that the preponderance of the evidence is against this claim. ORDER Entitlement to a total disability rating for hospitalization during the period from August 12, 1996 through February 22, 1997, is denied. REMAND With regard to the issue of an increased rating for cervical spine strain, a preliminary review of the record discloses that it is unclear whether all pertinent records have been obtained in this case. Specifically, the veteran indicated at a June 1999 hearing before the undersigned Member of the Board that he had received treatment for his cervical spine from a "Dr. Joel" at the VAMC in May 1999. He also indicated that he had been treated in the VA emergency room for neck pain on several occasions. The Board finds that an attempt should be made to obtain the records to which the veteran has referred. With respect to the VA records, the VA is deemed to have constructive knowledge of those records and, in this case, has actual knowledge of the existence of those records. As such, they are considered to be evidence which is of record at the time any decision is made, and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the foregoing, the Board will defer consideration of the question of whether the claim is well grounded. Accordingly, this case is REMANDED for the following action: 1. The RO should attempt to obtain and associate with the claims folder, the VA treatment records relating to treatment by "Dr. Joel" in May 1999, as well as all VA medical records of treatment since that date. 2. When the development requested has been completed, the claims for an increased rating for cervical stain and entitlement to entitlement to vocational rehabilitation training should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case, and be afforded the appropriate period to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence or argument he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals