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Paragraph 28, 29 and 30 Awards Texas Veterans Commission Instructors David N. Cantu, Jr. Robert E. Manchester Spring Training 2009
Objectives • Understand the difference of Paragraph 28, Paragraph 29 and Paragraph 30 Benefits • Understand the processing of these types of benefits
References • 38 CFR 4.28 • 38 CFR 4.29 • 38 CFR 4.30 • M21-1MR, Part IV, Subpart ii, Chapter 2, Section J • 38 USC 1151
Prestablization Ratings • Known as Paragraph 28 (38 CFR 4.28) • Created to assure earliest payment to veterans most likely in need • No waiting for additional development or examination for SC disabilities shown to continue for an indefinite period
Prestablization Ratings(Con’t) • Rating can be based on medical evidence contained in STRs, or recent military, VA or private hospitalization reports
Prestablization Rating Evaluation • A prestablization evaluation of 100% or 50 % can be assigned when the medical evidence shows the existence of an unstabilized condition for which service connection can be granted
100% Evaluation • Requires unstabilized condition with severe disability and substantially gainful employment is either not feasible or advisable
100% Evaluation(Con’t) • Should not be used in any case where a total evaluation could be immediately assigned under either the regular provisions of the rating schedule or on the basis of I.U.
50% Evaluation • Requires unhealed or incompletely healed wounds or injuries, and material impairment of employability is likely
50% Evaluation (Con’t) • Should not be used in any case where an evaluation of 50% or higher could be immediately assigned under the regular provisions of the rating schedule
Duration of the Grant • Used in the immediate post-discharge period • Continue for a 12 month period following discharge or separation • Requires a routine future examination no earlier than 6 months or later than 12 months following discharge or separation
Duration of the Grant(Con’t) • A prestablization rating can be changed to a regular schedular rating at anytime IF the regular rating results in an increased evaluation • Reductions of prestablization ratings cannot occur until the expiration of 12 months from date of discharge, and must follow the provisions of 38 CFR 3.105(e)
SMC • Can be assigned in a prestablization rating if supported by the medical evidence of record on which the rating is based
Severance Allowed • A separate evaluation must be assigned for a prestablization rating disability for which severance was awarded • VA disability compensation will not be recouped for veterans awarded disability severance pay for disabilities incurred in a combat zone or during performance of duty in a combat-related operation as designated by the Department of Defense (National Defense Authorization Act for FY 2008, Public Law 110-181)
Rating Decision • Rating decision must address all disabilities claimed or noted • Prestablization rating/issue should not be deferred for development of other issues • Prestablization rating contains one diagnostic code (most severe condition) followed by other unstable SC disabilities, but without separate diagnostic codes
Rating Code Sheet Example SUBJECT TO COMPENSATION (1.SC) Compound comminuted fracture of left femur due to gunshot wound (GSW) left thigh; GSW left arm; GSW chest; major depression Future Exam (date) 100% from (effective date) (38 CFR 4.28)
Paragraph 29 and 30 • Temporary total disability claims for Hospitalization and/or Convalescence will be assigned in accordance with the provisions of 38 CFR Paragraphs 29 and/or 30 respectively • This lesson will also focus on the specific requirements for Hospitalization (Paragraph 29), and on the specific requirements for Convalescence (Paragraph 30)
Application • Total disability for Hospitalization/Convalescence is provided as support for veterans who are hospitalized or unable to resume normal activities due to convalescence requirements from surgery or treatment • These benefits are TEMPORARY and assigned without regard to other provisions of the Rating Schedule when the veteran has met the associated fundamental requirements, which you are about to learn
Paragraph 29 Hospitalization in excess of 21 days • Veteran is hospitalized in excess of 21 days for a service connected disability • Qualifying disability may be one acquired under 38 U.S.C. 1151
The reports must indicate reasonable probability of a valid claim and contain descriptions, including diagnosis and clinical lab findings to be adequate for rating purposes • Sources of reports that are acceptable as Department of Veterans Affairs examination: • Military Hospital • State, county, municipal or government hospital • Recognized private institution 38 CFR 3.157(b)(3)
This list of evidence includes some items that would NOT be deemed equivalent to a Department of Veterans Affairs examination. Select the item(s) that would NOT be considered equivalent • Treatment report from McDill AFB Hospital • VAHR from St. Petersburg • McNulty’s Chiropractic Hospital treatment records which do not contain a diagnosis • Treatment reports from an approved private hospital (certified by a VAH)
Answer • The correct answer is C. Examinations which do not provide a diagnosis would not be considered equivalent to a Dept. of VA examination.
Effective Dates • The effective date of the Hospitalization benefits is the date that entitlement to the temporary 100% disability begins. • For a VA Hospital or an authorized non-VA hospital, the effective date is the THE DATE THAT THE VETERAN WAS ADMITTED INTO THE HOSPITAL. However, if the veteran was not originally admitted for a SC condition, the effective date would be THE DATE THAT TREATMENT OF THE SC CONDITION BEGAN. • No time limit for submission of claim (VA & approved non-VA) 38 CFR 3.157 (b) (3)
Evaluate for a Hospital Rating Effective Date and Duration • If the veteran was treated at a non-VA hospital that was not authorized by the VA, the effective date is the date of admission as long as the claim was received WITHIN 1 YEAR of the admission date. If the claim was not received within a year, the claim for Hospitalization benefits would be denied.
VA Hospital • Your claimant was hospitalized at Tampa VAH for a nonservice-connected condition. However, while he was hospitalized, he began treatment for a service connected disability. He was admitted on July 2, 1998, began treatment for the SC disability on July 8, 1998, and was discharged on July 31, 1998. What is the effective date? VA Hospital
Answer • The effective date is July 8, 1998, because the treatment for the SC disability began on that date in a VA Hospital.
Non VA Hospital - Unauthorized • You receive medical records for treatment not authorized by the VA from a non VA hospital on March 5, 1998, for a claimant who has a service connected disability. The admission date for the treatment was December 16, 1996, and the discharge date was February 5, 1997. What is the effective date?
Answer • The claim would be denied since the evidence was received more than one year after treatment was terminated and the treatment occurred in a non-VA facility that was not approved.
Effective Date and Duration • When a temporary total disability based on 38 CFR 4.29 is approved, the rating should continue THROUGH the end of the month of discharge from the treatment facility. For example, a veteran entered the hospital on January 27, 1998. The temporary total disability rating would be in effect through January 31, 1998. This scenario is shown on the excerpt of the Rating Decision shown here
Practice Exercise • A claimant was admitted to the Chamberlain’s VA Hospital on July 10, 1998, for a service connected disability. He was discharged on August 1, 1998. When would the temporary 100% disability rating end? • July 31, 1998 • August 1, 1998 • August 31, 1998 • None of the above
Answer • The correct answer is D. The claimant is entitled to 100% until September 1, 1998 because the temporary 100% disability rating continues to the end of the month of the discharge date.
Paragraph 30Surgical or Immobilization Rating • Surgery necessitating at least 1 month convalescence • Surgery with severe post-operative residuals; or • Immobilization of at least one major joint by cast without surgery
Evaluate for a Convalescence Rating Applicability • A Convalescence rating will only be considered when a service connected disability is being treated. Convalescence can only be claimed after regular discharge or outpatient release. Unlike Hospitalization, Convalescence can be claimed regardless of the length of hospital stay
Evaluate for a Convalescence Rating Applicability • Convalescence ratings are for veterans when treatment for a service connected disability necessitates a recovery period that requires them to be removed from his or her normal activities for a specified amount of time. The entitlement ensures an income during convalescence. This applies regardless of the veteran’s employment status.
Evaluate for a Convalescence Rating Applicability • Paragraph 29 extensions for convalescence for more than 3 months after the last day of the month after the last day of the month of discharge require approval by the Service Center Manager as stated in 38 CFR 4.29 (f) and M21-1MR, Part IV, Subpart ii, Chapter 2, Section J, Topic 61.
Extension of Paragraph 30 • Extensions of 1, 2 or 3 months beyond the initial 3 months may be made if convalescence requirements are met (under 4.30) • Extension of 1 month or more up to 6 months beyond the initial 6 months period may be made upon approval of the Service Center Manager
Practice Exercise • A 38 year old veteran, service connected for a kidney condition, underwent a kidney transplant after entering a VAH on 6/15/97. She was discharged on 7/5/97. What is the effective date and ending date of convalescence and the new minimum evaluation percentage after the convalescence period had ended? Explain. • 6/15/97; 8/1/98; 30% • 6/15/97; 7/5/98; 0% • 7/5/97; 7/5/98; 30% • Not enough information
Answer • The correct answer is A. The effective date is the date of admission, 6/15/97. Under the diagnostic code 7531 for a kidney transplant, the mandatory 100% is in effect for ONE YEAR after the DATE OF DISCHARGE (7/5/97) which brings us to the end of the month of July of the following year as the ending date (8/1/98). The residuals, thereafter, are evaluated at a minimum of 30%.
Practice Exercise • A veteran is service connected for a right knee condition. He was hospitalized on 2/20/98 and underwent a right knee total knee replacement at a VAH. He was discharged on 2/27/98. What is the effective date and ending date of convalescence and the new minimum evaluation percentage after the convalescence period has ended? • 2/20/98; 2/28/99; 0% • 2/20/98; 4/1//99; 30% • 2/27/98; 2/28/99; 30% • 2/27/98; 3/31/99; 0%
Answer • The correct answer is B. The effective date is the date of admission, 2/20/98. Under the diagnostic code 5055 for a total knee replacement, the mandatory 100% is in effect for ONE YEAR after initial grant for the 1 month total rating assigned under 4.30 following hospital discharge (2/27/98) which brings us to the end of the month of March the following year as the ending date (4/1/99). The residuals thereafter are evaluated at a minimum of 30%