Can you get temporary 100% Convalescence after surgery if s/c disability caused it?

[Navy4life]

Okay I know that you CAN get the 100% temp conv. for a s/c disability if you have surgery BUT can you get 100% temporary convalescence for a surgery to a condition that is NOT S/C ?  My surgery was on my right foot fracture AND the fracture was due to my left ankle giving out and that left ankle is S/C.  I have a good letter from my VA doctor stating the left ankle is the reason why I had the injury to my right foot and the reason why I had surgery.  

I have been NWB going on two months now and still have another month of NWB to go.....

Has anyone ever heard of this before??????

 

[Guest]

9 hours ago, Navy4life said:

my surgery was on my right foot fracture AND the fracture was due to my left ankle giving out and that left ankle is S/C.  I have a good letter from my VA doctor stating the left ankle is the reason why I had the injury to my right foot and the reason why I had surgery.  

The crazy one here, so you have a letter from your VA doctor that state that your service connected condition caused you to have the surgery. Sounds to me like you need to apply for the 100% Convalescent Temp. rating and a separate rating for your Right Foot.

4.30   Convalescent ratings.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to §3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section.

(a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in:

(1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989.)

(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 the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.)

(3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to §3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physcial examination will be scheduled prior to the end of the total rating period.

(b) A total rating under this section will require full justification on the rating sheet and may be extended as follows:

(1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section.

(2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Veterans Service Center Manager.

[41 FR 34256, Aug. 13, 1976, as amended at 54 FR 4281, Jan. 30, 1989; 71 FR 28586, May 17, 2006]

 

[Berta]

If you can get the Rt foot SCed as secondary to the left foot ,there should be no issue with the temp convalescence comp, if you completely fall into the temp convalescence guidelines, available here under a search.

The letter sounds good as long as it contains a complete medical rationale.

It makes sense that anyone with one impaired appendage or foot, could definitely have problems in the other foot or appendage because of that.

I am sure there would be cases like that at the BVA.

 

[Navy4life]

7 minutes ago, pete992 said:

The crazy one here, so you have a letter from your VA doctor that state that your service connected condition caused you to have the surgery. Sounds to me like you need to apply for the 100% Convalescent Temp. rating and a separate rating for your Right Foot.

4.30   Convalescent ratings.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to §3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section.

(a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in:

(1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989.)

(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 the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.)

(3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to §3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physcial examination will be scheduled prior to the end of the total rating period.

(b) A total rating under this section will require full justification on the rating sheet and may be extended as follows:

(1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section.

(2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Veterans Service Center Manager.

[41 FR 34256, Aug. 13, 1976, as amended at 54 FR 4281, Jan. 30, 1989; 71 FR 28586, May 17, 2006]

 

Pete;

I have a FDC claim pending for decision as we speak for my 100% temporary conv. leave and ironically I have a DRO hearing this FRIDAY to address my right foot s/c denial from 2014.  If the denial is up held I am assuming I should apply for the right foot as secondary to the left ankle?

Yes the letter is attached for review and I am just concerned that the CFR doesn't allow me to be granted the temp. conv if the contention is NOT s/c.....

[Guest]

3.310   Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

(Authority: 38 U.S.C. 1110 and 1131)

[Navy4life]

9 minutes ago, Berta said:

If you can get the Rt foot SCed as secondary to the left foot ,there should be no issue with the temp convalescence comp, if you completely fall into the temp convalescence guidelines, available here under a search.

The letter sounds good as long as it contains a complete medical rationale.

It makes sense that anyone with one impaired appendage or foot, could definitely have problems in the other foot or appendage because of that.

I am sure there would be cases like that at the BVA.

 

Berta;

I am so happy to have you replying!  You are a wealth of information....Here is my situation that is kind of sticky!  

I have an NOD pending pertaining to the left foot/2nd metatarsal toe; right foot fracture; and right foot sprain this Friday.  I was denied s/c for the contentions in 2014.  While waiting for this NOD, I suffered a fracture over the Christmas holiday 2015 to the right foot as a DIRECT result of the left ankle which is s/c.  I had surgery on January 6th, 2016 and I am in NWB status as of today! My podiatrist provided TWO letters for me: one for the FDC claim (which is attached in this thread) and one for my upcoming NOD NOD redacted doctor letter.pdf.

Since I was waiting for my NOD, I submitted an FDC in January 2016 for 100% temporary conv.; left ankle increase.  I did not ADD the right foot as secondary to left ankle b/c of the NOD.  Was that a mistake????

If I get denied at the NOD for the right foot fracture, I will file secondary s/c for the right foot to the left ankle.  Correct?

If I get the FDC denied for 100% temp Conv.  should I reapply with the new FDC claim to add the right foot?

What if I am s/c during the NOD for the right foot???

So many factors right now.....

[Navy4life]

10 minutes ago, pete992 said:

3.310   Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

(Authority: 38 U.S.C. 1110 and 1131)

Pete;

So I should have my right fracture s/c as secondary to the left ankle.  Since I did not have the right foot as a secondary claim to left ankle in my FDC do I need to wait until after the NOD for the right foot? I am so confused right now.

Should I go ahead and add the right foot secondary to the left ankle to my current FDC?  I am currently in Preparation for Decision.....