Applying For 100 % Based On Upcoming Surgery

[betrayed]

I have heard u can, but have seen nothing in CFR38 in regards to it. I am thinking very serious about having the neck surgery done................

[Guest Jim S.]

You can start the paperwork, but unless the Hospital recovery period and/or stay in the hospital isn't a certain amount of time, you will get nothing more than what the schedule already allows and as long as it is SC. What type of surgery are you needing and how do you expect the surgery to effect it, if it makes it better, you may find them reducing your award after surgery ?

Jim S. :)

[betrayed]

You can start the paperwork, but unless the Hospital recovery period and/or stay in the hospital isn't a certain amount of time, you will get nothing more than what the schedule already allows and as long as it is SC. What type of surgery are you needing and how do you expect the surgery to effect it, if it makes it better, you may find them reducing your award after surgery ?

Jim S. :)

Neurosurgeon said minimum 4 months to recover, and now it is SC 0%

Edited March 4, 2006 by FLHRCI

[Guest Jim S.]

I'm not sure how it works exactly, but it appears you may be eligible for 100% for awhile. You might also see about getting the 0% raised for the period, between the time the Dr said you needed surgery and when you actually do have the surgery.

It's late, but I will see if I can find the Rule that cover 100% while in the Hospital and recovery.

Jim S. :)

[Guest Jim S.]

I think this is what you were looking for:

Sec. 4.29 Ratings for service-connected disabilities requiring

hospital treatment or observation.

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

Department of Veterans Affairs or an approved hospital for a period in

excess of 21 days or hospital observation at Department of Veterans

Affairs expense for a service-connected disability for a period in

excess of 21 days.

(a) Subject to the provisions of paragraphs (d), (e), and (f) of

this section this increased rating will be effective the first day of

continuous hospitalization and will be terminated effective the last day

of the month of hospital discharge (regular discharge or release to non-

bed care) or effective the last day of the month of termination of

treatment or observation for the service-connected disability. A

temporary release which is approved by an attending Department of

Veterans Affairs physician as part of the treatment plan will not be

considered an absence.

(1) An authorized absence in excess of 4 days which begins during

the first 21 days of hospitalization will be regarded as the equivalent

of hospital discharge effective the first day of such authorized

absence. An authorized absence of 4 days or less which results in a

total of more than 8 days of authorized absence during the first 21 days

of hospitalization will be regarded as the equivalent of hospital

discharge effective the ninth day of authorized absence.

(2) Following a period of hospitalization in excess of 21 days, an

authorized absence in excess of 14 days or a third

[[Page 374]]

consecutive authorized absence of 14 days will be regarded as the

equivalent of hospital discharge and will interrupt hospitalization

effective on the last day of the month in which either the authorized

absence in excess of 14 days or the third 14 day period begins, except

where there is a finding that convalescence is required as provided by

paragraph (e) or (f) of this section. The termination of these total

ratings will not be subject to Sec. 3.105(e) of this chapter.

(:) Notwithstanding that hospital admission was for disability not

connected with service, if during such hospitalization, hospital

treatment for a service-connected disability is instituted and continued

for a period in excess of 21 days, the increase to a total rating will

be granted from the first day of such treatment. If service connection

for the disability under treatment is granted after hospital admission,

the rating will be from the first day of hospitalization if otherwise in

order.

© The assignment of a total disability rating on the basis of

hospital treatment or observation will not preclude the assignment of a

total disability rating otherwise in order under other provisions of the

rating schedule, and consideration will be given to the propriety of

such a rating in all instances and to the propriety of its continuance

after discharge. Particular attention, with a view to proper rating

under the rating schedule, is to be given to the claims of veterans

discharged from hospital, regardless of length of hospitalization, with

indications on the final summary of expected confinement to bed or

house, or to inability to work with requirement of frequent care of

physician or nurse at home.

(d) On these total ratings Department of Veterans Affairs

regulations governing effective dates for increased benefits will

control.

(e) The total hospital rating if convalescence is required may be

continued for periods of 1, 2, or 3 months in addition to the period

provided in paragraph (a) of this section.

(f) Extension of periods of 1, 2 or 3 months beyond the initial 3

months may be made upon approval of the Adjudication Officer.

(g) Meritorious claims of veterans who are discharged from the

hospital with less than the required number of days but need post-

hospital care and a prolonged period of convalescence will be referred

to the Director, Compensation and Pension Service, under Sec.

3.321(B)(1) of this chapter.

[29 FR 6718, May 22, 1964, as amended at 41 FR 11294, Mar. 18, 1976; 41

FR 34256, Aug. 13, 1976; 54 FR 4281, Jan. 30, 1989; 54 FR 34981, Aug.

23, 1989]

Sec. 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 Sec. 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.

[[Page 375]]

(Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to Sec. 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.

( 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 Adjudication Officer.

[41 FR 34256, Aug. 13, 1976, as amended at 54 FR 4281, Jan. 30, 1989]

Sec. 4.31 Zero percent evaluations.

In every instance where the schedule does not provide a zero percent

evaluation for a diagnostic code, a zero percent evaluation shall be

assigned when the requirements for a compensable evaluation are not met.

[58 FR 52018, Oct. 6, 1993]

Best wishes for a speedy and successfull recovery.

Like I posted before, apply for an increase in your 0% evaluation from the time you were told you needed surgery or from when the evidence in the records show it. If it was longer than a few months and you feel the evidence shows a step in increase over a longer period, you may want to ask for a step increase where it shows from time to time the increase in rating has shown to have happened.

A step increase, is for disabilities that appear to steadedly increase in severity, where the evaluation gose from 0% to a higher percent over time, the step would depend on the records and where it is shown the step increase has occured and for how long between steps.

I'm tired now and having a bit of a problem consentrating, Night meds are finally kicking in I think. It does this to me some times even when I take my meds on time.

02:15 a.m. and alls well

Jim S.

[vaf]

I'm confused by the "over 21 days" part, and then later on, the "1, 2 or 3 months following the first day of the following month" part. Does this mean that if a veteran is hospitalized for surgery for a service connected condition for three days, and then is at home recuperating for 31 days, but the 31 days spans two months, so that maybe only 15 days were spent recuperating after the first of the following month, he's not going to receive 100% for that period?

How does the 21 days apply?

Thanks!

[Guest Jim S.]

Vicki: This is just another confoluted way the VA goes about refusing benefits Veterans would otherwise be intitled to. I'm surprised this hasn't been address by a General Council Decision.

The number of days that a Veteran spends convelesing, should start the very day he is discharged from the Hospital and then run until a Dr. decides he is or would be eligible to otherwise return to work.

Your right to be confused, I re-read that part again and it does sound like the convelesing period starts the first day of the month after discharge from the hospital. I think that they are considering that earlier period to stand for the 21 days of hospital admissions.

So what you have is, if you went in on the 15 for surgery, the next days following in that month count as your 21 days and then you strart counting the next month for convelescense. So either way you look at it, your either going to spend 21 days in the hospital with a period of convelescense or just a few days and your convelescense doesn't start until the first of the nest month.

The VA wants some accountability for the 21 days of hospitilization.

Jim S. :)