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................

[vaf]

My husband has a claim in for a service-connected hernia repair surgery that took place on 5/14/04. He was in the hospital overnight, and was discharged the next day. He convalesced and returned to work on 6-15-04.

Does it sound like this qualifies, I'm thinking it may not.

Thanks again.

[vaf]

Hi, sorry to be a pest, but just asking this question again, has anyone been through this?

We filed for this benefit in 2004, maybe we weren't entitled to it. I'm asking so I know whether to press it or not.

Thanks all.

[Guest Berta]

http://www.va.gov/vetapp05/files3/0520913.txt

This case shows the convalescence criteria.

It seems that your claim is like this part : under (1)

"Entitlement to a temporary total convalescence rating is

warranted if treatment of a service-connected disability

results in: (1) surgery necessitating at least one month of

post-operative convalescence; (2) surgery with severe post-

operative residuals such as incomplete healed surgical

wounds, therapeutic immobilization of one major joint or

more, application of a body cast, the necessity for house

confinement, or the necessity for continued use of a

wheelchair or crutches (regular weight- bearing prohibited);

or (3) immobilization by cast, without surgery, of one major

joint or more. " Id.

Have you heard anything at all since filing this claim in 2004?

With medical evidence that states that he needed the month off work due to this

surgery for SC condition-I sure think this qualifies him for the Temp 100% for that month.

[vaf]

No, to date we haven't heard anything directly from the VARO.

In September 2004, my husband called the VARO because we hadn't heard anything on the claim. First they said they never received the claim and that we'd have to start all over. The next day, after we located the certified mail receipt, my husband called back and got another lady on the phone, who told him that the VARO received the claim, and that it had been denied. We told her we never received a Rating Decision or an SOC. She asked us to give her a chance to see what was going on with the claim, and to call her back. When we called her back later, she said that the C-file was in Washington awaiting a Board hearing (which took place in October 2005), and that the VARO had forwarded the claim to include it for Board review. She told us she didn't know where the information came from about the claim not being received or being denied, but she added that we had no grounds for this claim because my husband had to be convalescing for at least 90 days to justify a claim for 100% for that period.

The Board, in turn, remanded the matter back to the VARO saying that the VARO was to send us an authorization to obtain the medical files regarding this surgery (which we had already sent to them). The Board noted that the 2003 C & P exam didn't reveal evidence of an incisional hernia. However, I had already sent the VARO a copy of a C & P exam from 1998 in which the examiner stated there was evidence of a developing incisional hernia. Plus, my husband has a private doctor, he doesn't go to the VA for his healthcare, just his meds. Evidently, the VARO hadn't sent the Board the medical information I had forwarded to the VARO, just the claim we had sent shortly before the surgery.

So here we are today, with the C-file still in Washington awaiting a Court hearing. The VA's General Counsel is to make the Designation of Record no later than March 20, 2006. It's my understanding that once that happens, the file then goes back to the VARO (?) and maybe then, we'll receive our avalanche of Rating Decisions and/or SOC's.

One of which is this claim for 100% disability during my husband's 31 day convalescence.