Convalescence Compensation Post Spinal Fusion

[DD_Carter]

Hey everyone,

I am hopping as a community you guys can help me out. Its going to be a bit of a long drawn out story but please bare with me. 

I separated from the USMC in February of 2012. It has been a bit of a roller coaster of a ride with the VA. I have been increased, decreased, increased, decreased and increased on more time in my rating. I do not remember a single time that I did not have a claim submitted to the VA post discharge. 

Anyway on to the main topic at hand. On approximately April 8th 2016 my doctor diagnosed me with Degenerative Disk Disease, Bulging Disk, and Pars Defect. On that same day he placed a 20lb lift restriction on me until we could get it fixed and due to that lift restriction, I lost my job. I was unable to perform the duties I was hired to do. We tried all the conservative methods of fixing it and nothing worked. He then referred me to a surgeon who said that the only thing that would fix it surgery. Upon scheduling the surgery I went to see the VA here in my county who advised me to put in for Convalescence Compensation. They helped me fill out the paperwork and submit it. They told me that I could get the Temporary 100% for the entire time I was out of work due to a Service Connected Disability. On March 20th 2017 almost a year later, I went in for surgery. They ended up fussing the L5 and S1.  Once the surgeon opened me up he realized it was worse than they had thought. Originally they planned on putting on Titanium rod and two screws. I ended up with Two rods, four screws and a spacer. On March 28th 2017, they denied my Convalescence Compensation. I then contacted my rep at DAV and he told me that I submitted it to early and they would only pay from the date of the surgery. He then helped me resubmit for it. Yesterday on May 23rd, 2017 they denied me again. I am at a loss. I have struggled for over a year to take care of my family. 

On April 28th 2016 just 20 days after I lost my job my daughter was born. I started attending school again in as a contingency plan that I would never be able to return to my old career. Also during that time period my Home was completely destroyed during Hurricane Mathew. I am at a loss on what to do now. Does anyone have any suggestions on who I can turn to and what I can do? 

 

Thanks

[Berta]

"On March 28th 2017, they denied my Convalescence Compensation. I then contacted my rep at DAV and he told me that I submitted it to early and they would only pay from the date of the surgery. "

That would be correct.He then helped me resubmit for it.

"Yesterday on May 23rd, 2017 they denied me again. I am at a loss. I have struggled for over a year to take care of my family.  "

"They told me that I could get the Temporary 100% for the entire time I was out of work due to a Service Connected Disability. On March 20th 2017 almost a year later, I went in for surgery.

"38 C.F.R. § 4.30 sets forth provisions governing convalescent ratings. It provides that 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, effective from 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. 38 C.F.R. § 4.30 (2015). In order to attain the temporary total disability rating, the Veteran must demonstrate that his service connected disability resulted 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); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a) (2015). Extensions of periods of one, two, or three months beyond the initial three months also may be made under subparagraphs (1), (2), or (3) of 38 C.F.R. § 4.30 (a). In addition, approval may be obtained for extensions of one or more months, up to six months beyond the initial six-month period, under subparagraphs (2) or (3) of 38 C.F.R. § 4.30 (a). 38 C.F.R. § 4.30 (b). The Court has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden, 11 Vet. App. at 430 (citing Dorland's Illustrated Medical Dictionary). The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986))."

https://www.va.gov/vetapp16/files5/1640468.txt

Can you scan and attach here their Reasons and Bases for the denial,and also the evidence list?

Either they felt you did not meet the above criteria(possibly the surgeon gave them a possible return to work date that did not fit into the above ) or they did not have all of the evidence they needed at time of the decision. Did they schedule you for a C & P after the surgery? Something seems wrong here but that would be revealed in the words of the VA in the decision.

Cover C file #, name ,etc prior to scanning it.

"I lost my job. I was unable to perform the duties I was hired to do"

With 90% now, has the DAV suggested you apply for TDIU? and also SSDI....

Can you tell us what the 90% is for?

 

[DD_Carter]

I will post it once I get the copy in the mail. I had applied for TDIU in the past and was denied because they said I could work, just not in my current profession. They suggested I return to school under the GI bill or go see VocRehab. Not to mention I dont think the TDIU pay alone would be enough to support my family, so I need to be able to work. SSDI has never been suggested to me. The only thing I was told by my doctor was that I needed to look into alternative forms of compensation as I will never be able to return to by previous career. Here is a list of my disabilities and ratings.

 

Chondromalcia right knee s/p removal of bone fragment 10%

left knee strain 10%

anxiety disorder NOS; PTSD 50%

Unspecified respiratory condition (not service connected) I disagree with this considering I slept next to a burn pit in Iraq for 7 months. When I say next to I mean less than 100 yards.

Lumbar strain with intervertebral disc syndrome (IVDS) and spondylolysis of L5 vertebrae (previously rated as lumbar strain) 20%

radiculopathy, right lower extremity 10%

radiculopathy, left lower extremity 10%

tinnitus (claimed as cerumen impaction "tinnitus") 10%

Left elbow epicondylitis 10%

left elbow epicondylitis with supination and pronation mpairment 20%

bilateral hearing loss (not service connected) I also strongly disagree with this considering I was in the infantry. 

Migraines 30%

sleep apnea (not service connected)

Scar, right knee 0%

right elbow epicondylitis 10%

right elbow epicondylitis with supination and pronation impairment 20%

alopecia 0% 

Thanks

[Berta]

Do you have an active appeal filed on anything there you do not agree with?

Did the VA Apply Fast Letter 10-35 in the decision for the hearing loss claim? It is available here under a search.

Lots of info on Sleep apnea here too under search feature

"Unspecified respiratory condition (not service connected) I disagree with this considering I slept next to a burn pit in Iraq for 7 months. When I say next to I mean less than 100 yards. " Holy cow.....

I will see what I can find on that.

I think those NSC ratings are BS. What VARO is this?

Edited May 26, 2017 by Berta

[DD_Carter]

No I do not. The last time that I filled an appeal or reconsideration I got reduced and it took me 2 years to get it bumped back up. I am at the point where I am scared they will do the same thing. and givin my current situation, I am barely scrapping by as it is. 

[DD_Carter]

It seems to me that every time I make 1 step forward with the VA, they knock me 2 or 3 steps back with something else. 

[Berta]

Us hardcore claimants know well, how that feels. You must Never Give up.

I know of no direct sc awards for burn pit disabilities but am at the BVA site right now and maybe can find something recent