M21-1, Part IV, Subpart ii, Chapter 2, Section J – Compensation Under 38 CFR 4.28, 38 CFR 4.29, and 38 CFR 4.30

In This Section

Introduction

• purpose of prestabilization ratings under 38 CFR 4.28
• when to prepare a prestabilization rating
• duration of the award under 38 CFR 4.28
• criteria for assigning a prestabilization rating
• when to assign 100 and 50 percent prestabilization ratings
• assigning a prestabilization rating when potential eligibility for special monthly compensation (SMC) exists
• when a prestabilization rating is not appropriate
• future examination control of prestabilization ratings
• effective date of reductions in combined evaluations under 38 CFR 3.105(e)
• reevaluation of the service-connected (SC) disability(ies) in prestabilization ratings
• handling prestabilization ratings when severance pay is awarded, and
• handling certain mental disorders that cause discharge from service.

Change Date

IV.ii.2.J.1.a.  Purpose of Prestabilization Ratings Under 38 CFR 4.28

IV.ii.2.J.1.b.  When to Prepare a Prestabilization Rating

• prepare a prestabilization rating for the unstabilized disability(ies) withoutwaiting for further development or examination on the disability(ies), and
• defer a decision on any issues that are not ready for a decision.

IV.ii.2.J.1.c.  Duration of the Award Under 38 CFR 4.28

IV.ii.2.J.1.d.  Criteria for Assigning a Prestabilization Rating

IV.ii.2.J.1.e.  When to Assign 100 and 50 Percent Prestabilization Ratings

IV.ii.2.J.1.f.  Assigning a Prestabilization Rating When Potential Eligibility for SMC Exists

• evaluate disabilities in a prestabilization rating at the level of loss that is shown, and
• request an at-once examination to determine the full extent of disability.

IV.ii.2.J.1.g.  When a Prestabilization Rating Is Not Appropriate

• total 100-percent prestabilization rating in any case in which a total rating is immediately assignable
  • under the regular provisions of the rating schedule, or
  • on the basis of individual unemployability, or
• 50-percent prestabilization rating in any case in which an evaluation of 50 percent or higher would otherwise be immediately assignable under the regular provisions of the rating schedule.

IV.ii.2.J.1.h.  Future Examination Control of Prestabilization Ratings

• setting a future examination control when generating a rating decision, and
• controlling future examinations, including appropriate work item and end product (EP) use.

IV.ii.2.J.1.i.  Effective Date of Reductions in Combined Evaluations Under 38 CFR 3.105(e)

• the end of the period under the provisions of 38 CFR 3.105(e), or
• the first day of the month following the twelfth month after discharge.

IV.ii.2.J.1.j.  Expediting Reevaluation of the SC Disability(ies) in Prestabilization Ratings

• a Veteran’s failure to report for an examination, see M21-1, Part IV, Subpart ii, 3.B, and
• denials when a Veteran fails to report for an examination, see M21-1, Part III, Subpart v, 2.A.4.b.

• the only covered condition is a mental disorder that
  • develops in service as a result of a highly stressful event, and
  • is significant enough to cause release from active service, and
• the evaluations are assigned under the regular rating schedule.

• 38 CFR 4.129, and
• M21-1, Part III, Subpart iv, 4.O.1.g.

Introduction

• when to assign hospitalization ratings
• scope of hospitalization ratings
• awarding
  • hospitalization benefits when admission is for a non-service-connected (NSC) disability
  • a hospitalization rating for admission of an incarcerated Veteran, and
  • a hospitalization rating for multiple SC conditions
• when the provisions of 38 CFR 4.29 do not apply
• effective dates of hospitalization ratings, and
• responsibilities of the authorization activity regarding computer-generated messages.

Change Date

IV.ii.2.J.2.a.  When to Assign Hospitalization Ratings

• periods of hospitalization in excess of 21 days for medical treatment of an SC disability, or
• a disability requiring hospitalization in excess of 21 days for medical treatment for which compensation is payable under either 38 U.S.C. 1151or 38 U.S.C. 1160.

IV.ii.2.J.2.b.  Scope of Hospitalization Ratings

• Accept a Report of Hospitalization at a VA or uniformed services facility as a prescribed form for the purposes of considering entitlement to hospitalization benefits only. However, prepare a rating decision onlywhen entitlement to benefits is warranted.
• If a Report of Hospitalization at a VA or uniformed service facility is received, but entitlement to hospitalization benefits is not warranted
  • do not formally deny entitlement by rating decision
  • change the controlling EP 320, if present, to an EP 330,
  • clear the EP 330, and
  • annotate “No Action Necessary – Paragraph 29 and/or 30 entitlement not shown” on the Report of Hospitalization in the claims folder.
• If a claim for increase is received for a SC disability and the evidence shows entitlement to a hospitalization rating for the same disability, award a temporary total evaluation under the provisions of 38 CFR 4.29 as part of the claim for increase.
• A claim from a Veteran specifically for a hospitalization rating is not a claim for increase.  However, if the evidence establishes entitlement to a hospitalization rating, the assignment of a post-hospitalization evaluation is a part of the process of rating the hospitalization issue.
  • An increased evaluation may be warranted and awarded following the period of hospitalization.
  • A reduced evaluation may be warranted by the evidence following the period of hospitalization, and reduction action should be taken in compliance with 38 CFR 3.105(e) as warranted.
  • If the medical evidence does not establish that a change in the post-hospitalization evaluation is warranted, assign the evaluation in effect prior to hospitalization.  If the medical evidence suggests improvement may occur but such improvement is not definitively established, consider scheduling a routine future examination.
  • The assigned evaluation prior to the hospitalization is not subject to review as a part of the hospitalization rating.
• When a claim for hospitalization for an SC issue must be denied, do not routinely address the evaluation of the SC issue unless a separate claim for increase has been received.

IV.ii.2.J.2.c.  Awarding Hospitalization Benefits When Admission Is for a NSC Disability

IV.ii.2.J.2.d.  Awarding a Hospitalization Rating for Admission of an Incarcerated Veteran

IV.ii.2.J.2.e.  Awarding a Hospitalization Rating for Multiple SC Conditions

IV.ii.2.J.2.f.  When the Provisions of 38 CFR 4.29 Do Not Apply

• is treated as a resident in a State Veterans’ home
• is currently receiving a total rating for the disability for which hospitalization was required
• is a resident in a VA domiciliary program, or
• is a participant in a live-in/work out program being utilized to facilitate transition to community living.

• Hospitalization in excess of 21 days for an SC disability in a medical facility located at a State Veterans’ home may entitle the Veteran to hospitalization benefits.
• Veterans are entitled to hospitalization benefits for treatment in excess of 21 days in a day hospital program if the treatment given is consistent with hospital care for a SC disability even though they are concurrently required to be housed in a VA domiciliary.

• A 100-percent evaluation under 38 CFR 4.29 in combination with another SC disability, independently rated 60 percent or more disabling, entitles the Veteran to statutory Housebound benefits under 38 U.S.C. 1114(s).
• Hospital care, for the purpose of 38 CFR 4.29, is defined as the provision of services unique to the course of hospitalization for a SC disability.
• Domiciliary care involves the furnishing of a home to a Veteran with shelter, food, clothing, and other comforts of home, including necessary medical services.

• hospital care, see 38 U.S.C. 1701(5) and
• domiciliary care, see 38 CFR 17.30(b) and Mangham v. Shinseki, 23 Vet.App. 284 (2009).

IV.ii.2.J.2.g.Effective Dates of Hospitalization Ratings

IV.ii.2.J.2.h.  Responsibilities of the Authorization Activity Regarding Computer-Generated Messages

• remains hospitalized for more than six months, or
• is no longer hospitalized and it is determined that an examination for evaluation purposes is needed, in which case the proper action is to
  • establish EP 310, and
  • send a letter informing the Veteran of the pending examination.

Introduction

• duration of
  • awards under 38 CFR 4.29, and
  • extensions of the hospitalization ratings allowed under 38 CFR 4.29
• preparing an open-ended hospitalization rating decision, and
• following up on an open-ended hospitalization rating decision.

Change Date

IV.ii.2.J.3.a.  Duration of Awards Under 38 CFR 4.29

• Such termination may be due to
  • hospital discharge, regular or irregular, or
  • the cessation of treatment or observation for SC disabilities prior to discharge from the hospital.
• The effective date for a temporary total evaluation under 38 CFR 4.29commences from the date of entrance into the hospital, after 21 days of continuous hospitalization or treatment.

IV.ii.2.J.3.b.  Duration of Extensions of Hospitalization Ratings Allowed Under 38 CFR 4.29

• It is permissible to initially assign a one-month convalescence period and extend it another one or two months, if the facts warrant it.
• Further extensions of one or more months, up to three months, may be made upon approval of the Veterans Service Center Manager (VSCM).

IV.ii.2.J.3.c.  Preparing an Open-Ended Hospitalization Rating Decision

• preparing rating decisions, see
  • VBMS-Rating (VBMS-R) User Guide, and
  • VBMS Job Aids and Job Instruction Sheets, and
• open-ended awards under 38 CFR 4.29, see M21-1, Part III, Subpart v, 6.D.2.a.

IV.ii.2.J.3.d.  Following Up on an Open-Ended Hospitalization Rating Decision

• request a reexamination sufficiently in advance to ensure receipt of the report prior to expiration of the temporary 100-percent rating
• continue the 100-percent evaluation in cases in which the Veteran immediately enters into a day hospital program following inpatient hospitalization in excess of 21 days for psychiatric illness, as this action indicates that the Veteran is still in need of treatment and not able to return to employment.

• Do not apply the provisions of 38 CFR 3.105(e) unless the evaluation in effect prior to hospitalization is reduced following assignment of the 100-percent rating.
• Authorization will establish a 30-day future diary to ensure receipt of confirmation of treatment or hospital release and the final hospital summary so that the Veteran’s award may be adjusted properly.

Introduction

• convalescent ratings under 38 CFR 4.30
• severe postoperative residuals for ratings under 38 CFR 4.30
• evidentiary requirements for convalescent ratings
• work excuses and convalescence ratings
• scope of convalescence ratings
• convalescence for disabilities with common secondary etiology
• determining the effective date of convalescent ratings
• extension of convalescent ratings
• requesting future examinations
• post-convalescence evaluations and 38 CFR 3.105(e), and
• when the provisions of 38 CFR 4.30 are not applicable.

Change Date

IV.ii.2.J.4.a.  Convalescent Ratings under 38 CFR 4.30

• surgery necessitating at least one month convalescence
• surgery with severe postoperative residuals, or
• immobilization of at least one major joint by cast without surgery, including procedures performed at an outpatient clinic.

IV.ii.2.J.4.b.  Severe Post-operative Residuals for Ratings Under 38 CFR 4.30

• incompletely healed surgical wounds
• stumps of recent amputations
• 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).

IV.ii.2.J.4.c.  Evidentiary Requirements for Convalescent Ratings

IV.ii.2.J.4.d. Work Excuses and Convalescent Ratings  

• a clear connection between the claimant’s inability to return to previous employment and surgery or cast immobilization, and
• no contrary evidence of record.

IV.ii.2.J.4.e.  Scope of Convalescence Ratings

• Accept a Report of Hospitalization at a VA or uniformed services facility as a prescribed form for the purposes of considering entitlement to convalescence benefits only. However, prepare a rating decision onlywhen entitlement to benefits is warranted.
• If a Report of Hospitalization at a VA or uniformed service facility is received, but entitlement to convalescence benefits is not warranted
  • do not formally deny entitlement by rating decision
  • clear the EP 330, and
  • annotate “No Action Necessary– Paragraph 29 and/or 30 entitlement not shown” on the Report of Hospitalization in the claims folder.
• If a claim for increase is received for a SC disability and the evidence shows entitlement to a convalescence rating for the same disability, award a temporary total evaluation under the provisions of 38 CFR 4.30 as part of the claim for increase.
• A claim from a Veteran specifically for a convalescence rating or a review based on receipt of a Report of Hospitalization is not a claim for increase.  However, if the evidence establishes entitlement to a convalescence rating, the assignment of a post-convalescence evaluation is a part of the process of rating the convalescence issue.
  • An increased evaluation may be warranted and awarded following the period of convalescence.
  • A reduced evaluation may be warranted by the evidence following the period of convalescence, and reduction action should be taken in compliance with 38 CFR 3.105(e) as warranted.
  • If the medical evidence does not establish that a change in the post-convalescence evaluation is warranted, assign the evaluation in effect prior to convalescence.  If the medical evidence suggests improvement may occur but such improvement is not definitively established, consider scheduling a routine future examination.
  • The assigned evaluation prior to the period of convalescence is not subject to review as a part of the hospitalization rating.
• When a claim for convalescence for a SC issue must be denied, do not routinely address the evaluation of the SC issue unless a separate claim for increase has been received.

IV.ii.2.J.4.f.  Convalescence for Disabilities With Common Secondary Etiology

IV.ii.2.J.4.g.  Determining the Effective Date of Convalescent Ratings

• For total joint replacements, rated under 38 CFR 4.71a, diagnostic codes (DC) 5051-5056, the schedular 100-percent evaluation for one year following implantation of the prosthesis does not commence until after initial award of a one-month convalescence rating under 38 CFR 4.30 following hospital discharge.
• If a Veteran is hospitalized near the end of the month for a total joint replacement and released the beginning of the following month, the convalescent rating under 38 CFR 4.30 is effective beginning on the date of the hospital admission.  However, the period of one month convalescence is extended from the first day of the month following the Veteran’s discharge.  The 100-percent rating under the appropriate joint replacement DC will commence on the first day of the month following the convalescence period.

IV.ii.2.J.4.h.  Extension of Convalescent Ratings

• entitlement must have been established under 38 CFR 4.30(a)(2) or (3)(surgery with severe postoperative residuals or immobilization of one or more major joint), and
• approval of the VSCM is required.

IV.ii.2.J.4.i.  Requesting Future Examinations

IV.ii.2.J.4.j. Post-Convalescence Evaluations and 38 CFR 3.105(e)

• assign the temporary 100-percent convalescent evaluation as provided inM21-1, Part IV, Subpart ii, 2.J.4.e
• assign the evaluation in effect prior to hospitalization effective immediately thereafter, and
• propose reduction in accordance with 38 CFR 3.105(e) to the lower rate supported by the evidence.

IV.ii.2.J.4.k.  When the Provisions of 38 CFR 4.30 Are Not Applicable

• a temporary total rating under 38 CFR 4.29 is in effect at time of hospital discharge, and
• the conditions requisite for extensions under 38 CFR 4.29 for an adequate convalescent period are present.

• if the final hospital summary justifies an extension of the temporary 100-percent rating for periods beyond six months after discharge, and
• upon approval by the VSCM.

Introduction

• temporary total evaluations under a DC for a definite period of convalescence
• DCs providing for temporary total evaluations – relationship to 38 CFR 4.29 and 4.30
• definition of definite periods of convalescence
• staged rating of definite periods of convalescence
• example 1: staged rating of definite period of convalescence
• example 2: staged rating of definite period of convalescence
• example 3: staged rating of definite period of convalescence
• control and assignment of definite convalescence periods, and
• reexamination after definite period of convalescence.

Change Date

IV.ii.2.J.5.a.  Temporary Total Evaluations Under a DC for a Definite Period of Convalescence

IV.ii.2.J.5.b.  DCs Providing for Temporary Total Evaluations – Relationship to 38 CFR 4.29 and 4.30

• Some DCs (for example, those covering implantation of joint prostheses,38 CFR 4.71a, DC 5051-5056) specifically provide that the period of temporary total compensation will commence after an initial award of a period of total disability under 38 CFR 4.30.
• In other cases the temporary total disability period specified by a DC can read as more limited than what could be potentially supported under 38 CFR 4.29 or 38 CFR 4.30.  For example, 38 CFR 4.104, DC 7018provides for a 100-percent evaluation for two months following admission for implantation or re-implantation of a cardiac pacemaker.  Arguably, this might be a shorter period of time than could be paid if there was a protracted hospitalization for complications of the procedure or a need for more than two months of convalescence based on severe post-surgical residuals.  In such cases, use the provision that is more favorable to the Veteran.

• a hospital discharge, if benefits under 38 CFR 4.29 were awarded, or
• discontinuance of a one-month temporary 100-percent rating under 38 CFR 4.30.

IV.ii.2.J.5.c.  Definition: Definite Periods of Convalescence

• specifies the period of time for which the total evaluation is permitted, and
• identifies the subsequent evaluation following the defined period of temporary total disability

• Knee replacement (38 CFR 4.71a, DC 5055) – one year following implantation of prosthesis (commencing after an initial award of a one month total rating under 38 CFR 4.30).
• Myocardial infarction (38 CFR 4.104, DC 7006) – during and for three months following myocardial infarction.

IV.ii.2.J.5.d.  Staged Rating of Definite Periods of Convalescence

• total disability for the specific period allowed, and
• immediately thereafter the greater of
  • the disability evaluation (if any) that existed before the period of total disability (to include an evaluation protected under 38 CFR 3.951(b))
  • a minimum rating (if specified in the DC), or
  • another evaluation established by facts of record at the time of rating. 

• the definite period of convalescence is being assigned prospectively and a minimum evaluation specified under the DC is lower than the running evaluation that was in effect prior to the disability period (see Example 2 in M21-1, Part IV, Subpart ii, 2.J.5.f), or
• the definite period of convalescence is being assigned retrospectively, and the factual level of disability after the definite period of convalescence supports a lower evaluation than the running evaluation in effect before the temporary total period (see Example 3 in M21-1, Part IV, Subpart ii, 2.J.5.g).

IV.ii.2.J.5.e.  Example 1: Staged Rating of Definite Period of Convalescence

• award the increased evaluation of 100 percent, and
• schedule assignment of the minimum rating of 30 percent to take effect after the end of the total disability period.

• The post convalescence minimum 30-percent evaluation is the greater when choosing between that evaluation and the running evaluation of 20 percent. In a prospective evaluation there are not facts about the future condition of the disability to consider another level of disability.
• 38 CFR 3.105(e) does not apply because at no point in time is the claimant being paid less than the running 20-percent rate.  The rating is staging up to the 100-percent rate and prospectively down to a rate greater than 20 percent.

IV.ii.2.J.5.f.  Example 2: Staged Rating of Definite Period of Convalescence

• grant the increased evaluation of 100 percent, and
• schedule assignment of a 50-percent evaluation to take effect after the end of the total disability period.

• The post convalescence 50-percent evaluation is the greater when choosing between the running evaluation and the minimum evaluation of 30 percent. In a prospective evaluation there are not facts about the future condition of the disability to consider another level of disability higher than 30 percent.
• 38 CFR 3.105(e) does not apply because at no point in time is the claimant being paid less than the running 50-percent rate.  The rating is staging up to the 100 percent rate and prospectively down to that rate.
• However, in the future, as or after the 50-percent evaluation goes into effect facts may show that only the minimum 30-percent evaluation is warranted. At that point in time the further reduction in evaluation would cause a reduction in the payments being made at that time (at the 50-percent rate) so 38 CFR 3.105(e) would apply.

IV.ii.2.J.5.g.  Example 3: Staged Rating of Definite Period of Convalescence

• award the increased evaluation of 100 percent
• assign a 40-percent evaluation to take effect after the end of the total disability period, and
• propose reduction to 30 percent.

• The post convalescence 40-percent evaluation is the greater when choosing between running evaluation, the minimum evaluation of 30 percent, and the facts.
• 38 CFR 3.105(e) does not apply to the decision to assign a 40-percent evaluation after the period of total disability because in doing so the claimant is never being paid less than the running 40-percent rate.  The rating is staging up to the 100-percent rate and prospectively down to that rate.
• However, the post convalescence rate is contrary to the current facts.  The facts support only the minimum 30-percent evaluation and further reduction in evaluation would cause a reduction from the running 40 percent level.  Therefore 38 CFR 3.105(e) would apply and you must propose further reduction.

IV.ii.2.J.5.h.  Control and Assignment of Definite Convalescence Period

IV.ii.2.J.5.i.  Reexamination After a Definite Period of Convalescence

• if a higher evaluation is warranted in those cases where a minimum evaluation specified in the DC was assigned after the definite period of convalescence, or
• if reduction of the post-convalescence evaluation is warranted (for example where 38 CFR 3.105(e) dictates reassignment of the running evaluation in effect prior to the period of convalescence) except where the running evaluation is a minimum or protected evaluation.

Introduction

• indefinite periods of convalescence under a DC
• definition of indefinite periods of convalescence
• prospective ratings under indefinite periods of convalescence and 38 CFR 3.105(e)
• retrospective evaluations of indefinite periods of convalescence and 38 CFR 3.105(e)
• cancer evaluations, and
• example– staged cancer evaluation.

Change Date

IV.ii.2.J.6.a.  Indefinite Periods of Convalescence Under a DC

IV.ii.2.J.6.b.  Definition: Indefinite Periods of Convalescence

• the 100-percent criteria refers to an “indefinite” period or does not specify the period for which the total evaluation is permitted, or
• the end point for total disability is not known, therefore may not be set, at the time of rating.

• indication that current evidence of active disease or treatment will require a reexamination and reassessment of the disability level, and
• a statement that reduction of the total disability is subject to the provisions of 38 CFR 3.105(e).

• A mandatory examination is conducted no sooner than one year following hospital discharge subsequent to kidney transplant surgery under 38 CFR 4.115b, DC 7531.
  • The period that the total disability will run may be a year or it may be longer, and the subsequent evaluation is dependent upon reexamination.
  • When the exam will be completed and what subsequent evaluation may be appropriate will not be known at the time of rating.
• An examination is to be conducted under 38 CFR 4.115b, DC 7528 no sooner than six months following the point at which a malignant neoplasm of the genitourinary system becomes inactive and there is no further antineoplastic treatment or therapy.
  • The period of total disability is not limited, and
  • based on the need for evidence of inactivity, end of treatment and review examination, the end point for total disability will not be known and set at the time of rating.

IV.ii.2.J.6.c.  Prospective Ratings Under Indefinite Periods of Convalescence and 38 CFR 3.105(e)

• the date that a future evaluation will replace the 100-percent rate, or
• the level of evaluation that is appropriate to subsequently assign.

• enter the total disability from the effective date
• assign a date for a future examination only if appropriate under M21-1, Part III, Subpart iv, 3.B and the facts of record.

• ensure that any examination report required by the DC is completed and considered, and
• apply the provisions of 38 CFR 3.105(e) when the rating will cause any reductions from the running total disability rate.

• consideration of 38 CFR 3.105(e), see M21-1, Part III, Subpart iv, 8.D.1.
• retrospective evaluations under DCs providing for indefinite periods of convalescence, see M21-1, Part IV, Subpart ii, 2.J.6.d, and
• reducing staged ratings in original disability claims, see Tatum v. Shinseki, 24 Vet.App. 139 (2010).

IV.ii.2.J.6.d.  Retrospective Evaluations of Indefinite Periods of Convalescence and 38 CFR 3.105(e)

IV.ii.2.J.6.e.  Cancer Evaluations

IV.ii.2.J.6.f.  Example– Staged Cancer Evaluation

• An original claim for SC for prostate cancer was received May 1, 2012.
• At that time there is active cancer.
• A prostatectomy is performed on June 20, 2012.
• Follow-up evaluations indicated that no antineoplastic treatment was needed.
• A VA examination was conducted June 6, 2013.
  • The examination confirmed that cancer had not recurred or metastasized.
  • Exam findings were notable only for subjective reports of urinary frequency of daytime voiding interval between two and three hours.
  • The examiner reviewed treatment records of private urologist and oncologist and noted that the exam findings were consistent with findings from all private reports over the prior eight months (since October 2012).
• For this scenario, all evidence is reviewed for the original rating for the claimed prostate cancer.

• Award a 100-percent evaluation from the date of claim.
• The reduced evaluation is warranted December 20, 2012, six months after cessation of treatment for a malignant neoplasm.

• The VA exam supports that the cancer did not recur at any time after June 20, 2012, and the disability shown since October 2012 was consistent with a 10-percent evaluation.
• However, October 2012 is not at least six months after the end of antineoplastic treatment.  The earliest date that the 100-percent evaluation can be staged down is December 20, 2012.
• The effective day of payment for the 10-percent evaluation is January 1, 2013.  Such action is consistent with standard practices and eliminates technical issues regarding establishment of a payment period prior to the end of the month.