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MDanysh

Question

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?

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Thanks for the replies everyone and the advice- he contacted the DAV and the VOS there recommended the same thing- getting the Doc to write a letter. I will keep you updated on the outcome

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The doctor needs to state a complete medical rationale for the need for convalescence.

It would help if he/she has the actual regulation and even refers to it in the opinion:

"A temporary total (100 percent) disability rating for

convalescence purposes will be assigned, for up to three

months, without regard to other provisions of the Schedule,

when it is established that treatment of a service-connected

disability results in:

(1) Surgery necessitating at least one

month of convalescence.

(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).

(3) Immobilization by cast, without

surgery, of one major joint or more.

38 C.F.R. § 4.30 (2009). Furthermore, extensions of

temporary convalescent ratings, for up to three months for

item number (1) above, and up to six months for items (2) and

(3) above, are available. 38 C.F.R. § 4.30."

"Thanks for the replies everyone and the advice- he contacted the DAV and the VOS there recommended the same thing- getting the Doc to write a letter. I will keep you updated on the outcome" I wonder if his DAV VSO would support a Reconsideration Request with the IMO.

As Sharon said it could go faster than a regular NOD.

I would send it Attention to and use the initials on the upper right hand corner of the denial when you send it in.

Edited by Berta
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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.

This is EXACTLY my condition in my right lower leg (30% SC'd)! Tibia/Fib fracture requiring IM nailing in July 1999! I'm VERY surprise that they didn't diagnose arthritis at the fracture sight and possible in the right knee along with the ankle.

I can't understand why they would elect to remove the IM nailing. I'm SHOCKED, that procedure was even done!

B6

Edited by Bravo6
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This is EXACTLY my condition in my right lower leg (30% SC'd)! Tibia/Fib fracture requiring IM nailing in July 1999! I'm VERY surprise that they didn't diagnose arthritis at the fracture sight and possible in the right knee along with the ankle.

I can't understand why they would elect to remove the IM nailing. I'm SHOCKED, that procedure was even done!

Please call me, as I have PM you my cell number!

B6

He was diagnosed w/arthritis in both ankles for sure, and I believe in the knees as well. I don't remember offhand what's what, but he's got a 30% SC rating. He tried for an increase about two years ago, and was denied- the VA sent him to a civilian doctor for the C & P, and the doctor told him he'd be lucky if he wasn't in a wheelchair by the time he's 40. His leg is something like an inch and a half shorter than the other, and his foot turns inward about 20-30 degrees when he walks- he's got back pain from compensating, and was evaluated for that as well. But still denied. As soon as we can, we're sending in for copies of ALL of his records- I've been told you have to pay a fee for these, which is why we're waiting on that.

Aside from this temporary 100% thing, we're sending in a new claim for increased rating. The removal of nailing is actually really common, we were concerned with that at first too. Regardless, it's done, but now it hurts him WORSE than before the surgery- I didn't think that was possible.

I really think they screwed up with the surgery. He was in for something like 5 hours, and when the surgeon came out, he said that they weren't able to get the rod out and only removed 1 intact screw (up by the knee). The denial letter refers to the surgical report and 2 broken screws being removed. They were supposed to at least attempt to remove ALL hardware- we know they didn't because there was no incision at the ankle to remove the 2 screws there. I think that's why they were unable to remove the rod- if there are 2 screws in place at the ankle, whether the head is broken off or not, the rod's not going to come out, is it?

Aside from that, when he came out of surgery, he had to take his own pain medication from his prescription for home. He's laying in the hospital bed with the surgical bandages soaking through with blood, and he asked the nurses if they could change them. He was told no, that they'd give him some gauze to add on top of those bandages when he got home. He was told to leave the bloody bandages on the incision until he came back in 5 days for his post-op appt. When it came time to leave, he asked if they'd be sending crutches for him to use and he was told no, he was cleared to walk with full weight bearing. They brought a wheelchair and told him okay you can go. I don't know if it's SOP with VA surgeries, but I had to wheel him out, while the nurses just sat there. At this point, the bandages are literally dripping with blood. When we got home and got him out of the car, we had to literally carry him in, because he almost fell down trying to walk with full weight on the leg. We have a couple of friends who were ER nurses, and asked them what to do about the bandages and wound up changing them ourselves. I cried when we took the bandages off- it looked horrible- see photos.

post-8859-061361900 1280181049_thumb.jpg knee cap

post-8859-076921000 1280181071_thumb.jpg incision for screw removal

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

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WOW, a little heads up . I was getting ready for dinner ,checking some post and whammo.

Sorry your going thru that, those incisions look very painful. Good luck and listen to the advice given here , much to be gained from this site.

Sgt :biggrin:

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WOW, a little heads up . I was getting ready for dinner ,checking some post and whammo.

Sorry your going thru that, those incisions look very painful. Good luck and listen to the advice given here , much to be gained from this site.

Sgt :biggrin:

Sorry, I didn't even think of giving a head's up, my bad. :biggrin:

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