Temporary 100% Increase

[MDanysh]

Hello everyone. Thanks in advance for whatever advice and words of wisdom you can offer. I don't know most of the acronyms or lingo, so forgive me if I get something wrong. I did search before posting, but didn't see our exact situation anywhere. Forgive me for the lengthy post, but I'm trying to include as much relevant info as I can.

My husband was in the Army from 1995-1997, when he was medically discharged. He was in an accident and suffered a severe compound fracture, and spent several months in the hospital going through several surgeries to repair his leg. He wound up with an intramedulliary rod with internal fixtures in his right tibia (a rod with screws, in case I didn't get the medical jargon right, lol). He was medically discharged and initially rated at 10% service connected disability. It was increased to 30% around 2002/3. Since then, he has had pain and swelling at the site of the break intermittently, but this past year, it increased to the point where the pain and swelling is almost constant and occurs every day. He was referred to the Orthopedic clinic at the Temple VA. The orthapedic surgeon there ordered x-rays, and when that didn't show anything, a bone scan was ordered at the end of April. The bone scan revealed new healing and growth at the site of the break from 1997. The surgeon didn't understand the reason for it, as there has been no recent trauma to the leg, and couldn't give a concrete reason for the continuous pain and swelling. So he decided that a rod (nail) and screw removal might relieve the pain and swelling. Surgery was scheduled for June 10, and the surgeon told him to expect to be home from work for most of the summer. Soon as we had all of the details, we started a claim for a temporary 100% increase evaluation on June 3rd. The surgery was a nightmare, btw (it looked like a butcher got a hold of his leg). Nonetheless, the surgery did take place. After four hours, the surgeon came to the waiting room and told me they were unable to remove the rod, and only took out one screw. As such, He released my husband to walk with full weight bearing on his leg the day of the surgery, but told him he could not return to work yet.

We returned to the Temple VA five days later for a post op follow up, and once again, the surgeon told him stay at home, no work, that they would follow up June 29. Went back June 29 for follow up and removal of surgical stitches. Dr told hubby they would discuss his being released to return to work in one month's time, pending pain levels, and to stay home and rest.

July 2nd, recieve response to VA claim, requesting evidence that he had had surgery and any other supporting evidence. We submitted the letter supporting claim, telling them everything I've just told you, as well as signing the release for his VA medical records. Mailed the same day. Then we waited. The wait was actually surprisingly short, even though it seemed to take forever. This past Thursday, we got the big envelope, with the letter dated July 16, informing us his claim was denied. The evidence they lised as using in their decision were his medical records from the Temple VA hospital, their letter requesting evidence, and my husbands initial claim form 21-0820, dated June 3, no mention of anything we sent in.

The following is word for word the reason for denying the claim:

"Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence:A temporary 100 percent evaluation may be assigned when it is established that a disability, subject to VA compensation, required surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or treatment with immobilization by cast of one major joint or more. Entitlement to this benefit is denied because treatment of the service-connected disability did not meet any of these requirements. VA Central Texas treatment records revealed you underwent hardware removal on your right knee on June 10, 2010. Two broken screws were removed, but the rod could not be removed. A treatment record also dated June 10, 2010 confirmed that Dr. xxxx cleared you to walk with full weight bearing on your right extremity on the same day as your surgery. The evidence of record does not show that you needed at least one month of convalescence, or had postoperative residuals, or treatment with immobilization by cast. Therefore, entitlement to a temporary evaluation based on surgery requiring convalescence is not established since the criteria were not met."

If he truly doesn't merit the temporary increase, that's fine, but I honestly don't understand this decision- he had the surgery, he's been home for going on 7 weeks now on Doctor's orders, he cannot return to work without his doctor's release, and the doctor won't sign a release. I would think that's the definition of convalescence. The decision letter went on to state that blah, blah, blah, you can submit additional evidence or appeal, or request a hearing if the evidence is something we haven't seen before and related to your claim.

Things are getting pretty desperate financially- we have 3 children (ages 12, 6, and 9 months), as of today, we're out of money, and will soon be out of food. Hubby returns to VA for another follow up on Thursday, and may or may not be released to go back to work- if he is, it will still be another 2 1/2 weeks before income starts coming back in. When we got the decision, we decided to try to apply for TANF, but did not qualify- for a family of 5, income has to be less than $268 per month, so we exceeded that with his current $497 monthly compensation. We tried food stamps, but don't qualify for expedited handling, because that same $497 exceeds our monthly utilities total by $3. They said they'd send us a letter, letting us know what they decide. I can't go looking for a job, yet, because if he's released to return to work Thursday, I'll have to quit after only a couple of days. We are in a lose-lose situation at the moment. (Sorry for the mini rant). I would have never waited it out if I thought the VA was going to out and out deny the claim- it never occurred to me that they would, because I thought the doctor ordering you to stay home for 6+ weeks qualified as convalescence.

Can anyone offer advice or an explanation? What would constitute new evidence? Is there anything we can do to reverse this decision?

[Commander Bob]

anyways, I'm getting way off topic, lol. This whole thing has been a nightmare.

I am sorry that you and your husband have to go through this denial process. You have recived some excellent advice here already, so I will not add my concerns for your need to file a NOD. Your husband is most fortunate to have loving support at home.

As you can see, you are not alone in your nightmare.

[MDanysh]

UPDATE: We sent in a letter with the additional evidence from VA Doc and asked them to reconsider their denial,which they received Aug 3. This AM got a letter in from the VA stating that they had received the NOTICE of DISAGREEMENT- which is not what we sent at all. So we're still stuck waiting- it is so hard to not totally lose it with these people.

[steve_g]

Have you read CFR title 38 and what it states about what he went through. It seems he is due temporary 100% sinc he had surgery but I can say for sure.

I have a similar story but is had to so with a hip injury I get while I was in. I had to get a new hip procedure done, which, according to Title 38, is suppose to be rated at 100% for a year then a reevaluation C&P exam has to be done after a year.

What I got was 3 months temporary 100% and they backed it off to 10% since they didn't understand what I got. My report was so funny because they actually copied and pasted a line right out of the procedure brochure to justify their view. I got a new type of proceudure done known as a Birmingham resurfacing but I stil had my acetabular cup ground out on my hip bone as well as the femur getting a new ball put on it. According to TItle 38 any modification to the acetabular cup warrent the 100% TD. Needless to say I put in a notice of disagreement to what they stated. Along with it I pricted out a copy of the regulation as well as a copy of my x-ray of what my hip looks like now. Hopefully they get the message.

Maybe you should do the same. Keep records ofeveryday on how bad he feels and how his movements are. Then give that as evidence. Good Luck.

[carlie]

According to TItle 38 any modification to the acetabular cup warrent the 100% TD.

steve_g,

Can you provide the OP with a link to which 38 CFR Reg you are referring to ?

[MDanysh]

Hi all, haven't been all for awhile, so I thought I would give an update. After calling and telling them that He did NOT file a notice of disagreement, that he sent in additional evidence for his claim, he was told that the claim was in the appeals process and the gal he talked to said she didn't know what was going on, that it should not be in appeals (which he was told could take up to 60 days), that she would have it sent to the appropriate area, and he should get something in the mail in a few days and to call back if he hadn't received anything by the end of the month. That was August 14th. We still haven't received anything to date. He called back yesterday, as instructed, and was told by yet another person that the claim was still sitting in appeals, they didn't know what was up, blah, blah, blah. He was told it would get moved right away, and once again, that he should get something by mail in a few days.

This is so agonizingly slow- my baby has literally learned to walk and grown in four teeth since we first filed this claim!

At my last update on Aug 13, I told ya'll we got copies of the surgical report- since then, wonder of all wonders, the paperwork guy at the VA mailed us a disc with hubby's xray images after the surgery- and he didn't just send one for hubby to take to the trauma specialist, he sent one for hubby to keep for our records.

Where to start? You can actually see not one, not two, but 3 screws (minus the heads) still in place in his leg- which should have been removed prior to them beating the poopycock out of his leg while trying to get the rod out! And the surgeon said they couldn't figure out why the rod wouldn't come out? I have ZERO medical training and could see why it wouldn't come out. You can also see where the nobby end of the tibia has been chipped or broken (at the top near the knee), which it wasn't prior to surgery. In addition, when they couldn't get the rod fully out, they pushed it back in, but not all the way back in, so there is a portion of it sticking out of the bone, which you can actually physically feel under the skin. It also appears that his knee was damaged. As if that weren't enough, you can see stress fractures at the ankle!

He went to the trauma specialist on Tuesday. The Doc took one look at the xrays and told him it was beyond his expertise and referred him to another specialist who is supposed to be one of the best in the region. Doc told him that "to be honest, that Dr may not want to attempt to do anything" and that if he did do anything, it would probably be to make a 2nd attempt at hardware removal, and/or realigning the leg. A nice way of saying that they may have to rebreak it. He said that it appeared the original break was improperly set.

So, we're still playing the waiting game- He goes to this other Dr on Sept 23 and we'll see what happens with that. We also filed a separate claim for a permanent increase in his rating, which the VA also received on August 3rd, and not a word back on that one either.

[Berta]

Have you considered filing a Section 1151 claim ?