BVA9500367 DOCKET NO. 93-07 921 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a temporary total (100 percent) disability evaluation under the provisions of 38 C.F.R. § 4.29 (1994) for periods of hospitalization from July 25 to November 7, 1991, November 14 to November 21, 1991, and January 27 to February 5, 1992. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from October 1942 to May 1943. This appeal comes before the Board of Veterans' Appeals (Board) from an October 1992 rating decision by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO), which denied entitlement to temporary total (100 percent) disability evaluations under the provisions of 38 C.F.R. § 4.29 (1994) for the periods of hospitalization from July 25 to November 7, 1991, November 14 to November 21, 1991, and January 27 to February 5, 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the periods of hospitalization at issue were primarily for treatment of his service-connected gastrointestinal disability, and, therefore, he is entitled to a temporary total (100 percent) evaluation for each of the periods of hospitalization. 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 appellant'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 appellant claim of entitlement to a temporary total (100 percent) disability evaluation under the provisions of 38 C.F.R. § 4.29 (1994) for each of the periods of hospitalization from July 25 to November 7, 1991, November 14 to November 21, 1991, and January 27 to February 5, 1992. FINDINGS OF FACT 1. The appellant is service connected for residuals of a hemigastrectomy and vagotomy with dumping syndrome and atrophic gastritis, rated 40 percent disabling. 2. The appellant's period of hospitalization from July 25 to November 7, 1991, was for treatment of squamous cell carcinoma of the larynx, which required a total laryngectomy and was unrelated to his service-connected gastrointestinal disability. 3. The appellant's period of hospitalization from November 7 to November 14, 1991, was for treatment related to nonservice- connected carcinoma of the larynx. 4. The appellant was hospitalized for treatment related to a gastrointestinal (GI) bleed from January 27 to February 5, 1992. CONCLUSION OF LAW The criteria for a temporary total (100 percent) disability evaluation under the provisions of 38 C.F.R. § 4.29 (1994) for each of the periods of hospitalization from July 25 to November 7, 1991, November 14 to November 21, 1991, and January 27 to February 5, 1992, are not met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claim is well-grounded and adequately developed. A total disability rating (100 percent) 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 (1994). Review of the VA medical record for the period of hospitalization from July 25 to November 7, 1991, reveals that the appellant had been transferred from Baton Rouge with acute airway compromise, and was found to have a T4 squamous cell carcinoma of the larynx, for which he underwent a total laryngectomy that resulted in a very complicated postoperative course, including severe postoperative pancreatitis and gram negative sepsis. After overcoming those complications, he then had a full course of radiation therapy to the neck. VA Form 10-9034a, Medical Record Report, for a period of hospitalization from July 25 to November 7, 1991. The appellant was returned to the VA hospital on November 14, 1991, for evaluation of increasing difficulty with swallowing. At admission, he appeared dehydrated, secondary to his swallowing problems, which were felt to be most likely due to the tracheostomy tube that had been inserted during the surgery performed at the previous hospitalization. Examination revealed that the appellant was having some problems with the plastic tracheostomy tube, which was replaced with a metal tube. Thereafter, he had no more difficulty swallowing and was able to eat well. He was discharged on November 21, 1991. VA Form 10- 9034a, Medical Record Report, for a period of hospitalization from November 14 to November 21, 1991. The appellant returned to the VA hospital on January 27, 1992, with complaints of being unable to speak secondary to a communication problem with the "trach," and a five day history of vomiting, associated with epigastric pain, diaphoresis, hemoptysis, tarry stools, and blood per the rectum. A roentgenogram of the esophagus was performed and revealed esophagitis with mild reflux gastritis and no other lesions, which was treated with Carafate and follow-up hematocrits. An ultrasound of the abdomen showed a sonolucent mass in the left kidney. The diagnoses were gastrointestinal (GI) bleed, source unclear, and a questionable renal mass. VA Form 10-9034a, Medical Record Report, for a period of hospitalization from January 27 to February 5, 1992. As the medical records demonstrate that the appellant's period of hospitalization from July 25 to November 7, 1991, was for treatment and surgery related to carcinoma of the larynx, which is not a service-connected disability, a temporary total (100 percent) evaluation may not be granted because the hospitalization was not required to treat a service-connected disability. The second period of hospitalization, from November 14 to November 21, 1991, was also for treatment related to the nonservice-connected carcinoma of the larynx. The third period of hospitalization, from January 27 to February 5, 1992, was for a GI bleed. Although the third period of hospitalization may, arguably have been due to symptomatology related to the appellant's service-connected gastrointestinal disability, it, as did the second period of hospitalization , involved a period of hospitalization of less than 21 days. Hence, the periods of hospitalization from November 14 to November 21, 1991, and January 27 to February 5, 1992, fail to meet one of the requirements for consideration of entitlement to a total (100 percent) disability evaluation - that a period of hospitalization be in excess of 21 days . Because none of the three periods of hospitalization in question in this claim meets all of the criteria necessary for the grant of a temporary total (100 percent) evaluation under the provisions of 38 C.F.R. § 4.29, the Board is unable to identify a basis to grant the appellant's claim. ORDER A temporary total (100 percent) disability evaluation under the provisions of 38 C.F.R. § 4.29 (1994) for each of the periods of hospitalization from July 25 to November 7, 1991, November 14 to November 21, 1991, and January 27 to February 5, 1992, is denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.