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Updated Aug 02, 2023

In This Section

  
This section contains the following topics:
 
Topic
Topic Name
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2
3
 

 1.  DCs That Provide for Definite Periods of Schedular Temporary Total Evaluation

 

Introduction

  
This topic contains information on DCs that provide for definite periods of schedular temporary total evaluation, including

Change Date

  
August 2, 2023

VIII.iv.8.D.1.a.  Temporary Total Evaluations Under a DC for a Defined Period

  
The rating schedule prescribes temporary 100-percent evaluations under various diagnostic codes (DCs) for definite periods of time following treatment (including hospitalization), surgery, or certain significant disease manifestations. 

VIII.iv.8.D.1.b.  DCs Providing for Temporary Total Evaluations – Relationship to 38 CFR 4.29 and 4.30

  
Entitlement to a period of temporary total evaluation under a DC does not necessarily preclude entitlement under 38 CFR 4.29 or 38 CFR 4.30 and vice versa.
  • 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 7018 provides for a 100-percent evaluation for one month following hospital discharge 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 prolonged hospitalization for complications of the procedure or a need for more than one month of convalescence based on severe post-surgical residuals.  In such cases, use the provision that is more favorable to the Veteran. 
Conversely, the fact that a DC provides for a period of temporary total disability does not necessarily mean that disability compensation under 38 CFR 4.29 or 38 CFR 4.30 would be appropriate.
 
A DC might provide for a temporary total evaluation triggered by hospitalization but not necessarily hospitalization of a sufficient duration to qualify for a 38 CFR 4.29 evaluation or hospitalization for surgery or major joint immobilization to qualify for a 38 CFR 4.30 evaluation (for example, 38 CFR 4.104, DC 7011 provides for a 100-percent evaluation for an indefinite period from the date of inpatient hospital admission for initial medical therapy for sustained ventricular arrhythmia).
 
In those cases where a period of schedular entitlement to a temporary total evaluation follows a hospitalization, it should begin on the first of the month following
  • 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.
Reference:  For more information on assigning temporary total evaluations following receipt of a Report of Hospitalization at a Department of Veterans Affairs (VA) hospital, see M21-1, Part VIII, Subpart iv, 8.C.

VIII.iv.8.D.1.c.  Definition: Definite Periods of Schedular Temporary Total Evaluation

  
A temporary 100-percent evaluation falls into the category definite periods of schedular temporary total evaluation when the DC
  • 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. 
Examples:  
  • Knee replacement (38 CFR 4.71a, DC 5055) – four months 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.  
In both examples the period of total disability and subsequent evaluation can be addressed in the rating decision.

VIII.iv.8.D.1.d.  Staged Rating of Definite Periods of Schedular Temporary Total Evaluation

  
Definite periods of schedular temporary total evaluation and subsequent evaluations can be assigned prospectively (where total disability is still ongoing at the time of the rating) or retrospectively (when the period of total disability has already ended).  In either case, definite periods of schedular temporary total evaluation are assigned as essentially a staged rating.
 
In the rating assign
  • 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.
When following this rule, 38 CFR 3.105(e) will not apply to the assignment of a disability evaluation less than 100 percent after the total disability period because there will never be a reduction in payments currently being made. 
 
Important:  38 CFR 3.105(e) will apply, however, where a subsequent (further) reduction may be needed that will result in reduction in payments currently being made.  This will occur where, for example
  • the definite period of schedular temporary total evaluation 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 total disability period (see Example 2 in M21-1, Part VIII, Subpart iv, 8.D.2.b), or
  • the definite period of schedular temporary total evaluation is being assigned retrospectively, and the factual level of disability after the definite period of schedular temporary total evaluation supports a lower evaluation than the running evaluation in effect before the temporary total period (see Example 3 in M21-1, Part VIII, Subpart iv, 8.D.2.c). 
Reference:  For more information on setting a future examination for a schedular period of temporary total evaluation, see M21-1, Part VIII, Subpart iv, 8.D.1.f.

VIII.iv.8.D.1.e.  Control and Assignment of Definite Period of Schedular Temporary Total Evaluation

  
A definite temporary total evaluation period requires no future control.  If rated correctly, there is no potential for overpayment of the total disability period.  The rating that assigns the 100-percent evaluation also sets a subsequent evaluation to take effect after the specified period of total disability ends.
 
Reference:  For information on control of indefinite periods of schedular temporary total evaluation, see M21-1, Part VIII, Subpart iv, 8.D.3.

VIII.iv.8.D.1.f.  Reexamination After a Definite Period of Schedular Temporary Total Evaluation

 
  
When preparing a rating decision prospectively awarding a definite period of schedular temporary total evaluation and a subsequent evaluation as provided in M21-1, Part VIII, Subpart iv, 8.D.1.d, do not schedule a future examination before the end of the temporary total period. 
 
However, a future examination date may be entered in the Veterans Benefits Management System – Rating to ensure that the disability will be reexamined and reevaluated after the prescribed schedular temporary total evaluation period has expired.  These exams may be necessary to determine
  • if a higher evaluation is warranted in those cases where a minimum evaluation specified in the DC was assigned after the definite period of schedular temporary total evaluation, or
  • if reduction of the evaluation following the temporary total evaluation period is warranted (for example where 38 CFR 3.105(e) dictates reassignment of the running evaluation in effect prior to the period of temporary total evaluation) except where the running evaluation is a minimum or protected evaluation.  
Generally, when retrospectively awarding a period of temporary total disability, the level of disability after the end of the period of total disability (the current level of disability) will be known.  In such cases do not establish a future examination control except as provided in 38 CFR 3.327(b) and M21-1, Part IV, Subpart ii, 1.A.

 2.  Examples of Definite Periods of Schedular Temporary Total Evaluation

 

Introduction

  
This topic contains examples of definite periods of schedular temporary total evaluation, including

Change Date

  
July 29, 2021

VIII.iv.8.D.2.a.  Example 1: Staged Rating of Definite Period of Schedular Temporary Total Evaluation

  
Facts:  The determination involves a prospective increased rating for a knee replacement under 38 CFR 4.71a, DC 5055.  The knee replacement occurred three months before the date of rating.  The prior evaluation of the knee was 20 percent.  There are no other disabilities.
 
Result:  In the rating decision
  • 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. 
Explanation:
  • The 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.

VIII.iv.8.D.2.b.  Example 2: Staged Rating of Definite Period of Schedular Temporary Total Evaluation

  
Facts:  The determination involves a prospective increased rating for a knee replacement under 38 CFR 4.71a, DC 5055.  The knee replacement occurred three months before the date of rating.  The prior evaluation of the knee was 50 percent.  There are no other disabilities.
 
Result:  In the rating decision
  • 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. 
Explanation: 
  • The 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. 
Note:  This example is to illustrate staging principles, but in fact patterns like this (a high joint evaluation followed by joint replacement and higher than the minimum evaluation after the temporary total period) strongly consider a future examination to the extent justified by 38 CFR 3.327 and as provided by M21-1, Part VIII, Subpart iv, 8.D.1.f.

VIII.iv.8.D.2.c.  Example 3: Staged Rating of Definite Period of Schedular Temporary Total Evaluation

  
Facts:  The determination involves a retrospective increased rating for a knee replacement under 38 CFR 4.71a, DC 5055.  The claim was received 11 months after the knee replacement.  A disability benefits questionnaire showed that the prosthetic was stable and the Veteran was asymptomatic.  The prior, running evaluation of the knee was 40 percent.  There are no other disabilities.
 
Result:  In the rating decision
  • 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. 
Explanation:
  • The 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 continuance of the 40-percent 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 further reduction must be proposed.

                                                                                                                          

3.  DCs That Provide for Indefinite Periods of Schedular Temporary Total Evaluation

 

Introduction

  
This topic contains information on DCs that provide for indefinite periods of schedular temporary total evaluation, including

Change Date

  
August 3, 2020

VIII.iv.8.D.3.a.  Indefinite Periods of Schedular Temporary Total Evaluation Under a DC

  
The rating schedule prescribes temporary 100-percent evaluations under various DCs for indefinite periods of time following treatment (including hospitalization), surgery, or certain significant disease manifestations. 
 
Reference:  For more information on the interrelationship between schedular temporary total evaluations under a DC generally and 38 CFR 4.29 or 38 CFR 4.30, see M21-1, Part VIII, Subpart iv, 8.D.1.b.

VIII.iv.8.D.3.b.  Definition: Indefinite Periods of Schedular Temporary Total Evaluation

  
A temporary 100-percent evaluation falls into the category indefinite periods of schedular temporary total evaluation when
  • 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. 
Key features of DC provisions providing for indefinite periods of schedular temporary total evaluation also include
  • 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). 
Examples: 
  • 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.
    • 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. 
Reference:  For more information on assigning temporary total evaluations following receipt of a Report of Hospitalization at a VA hospital, see M21-1, Part VIII, Subpart iv, 8.C.

VIII.iv.8.D.3.c.  Prospective Ratings Under Indefinite Periods of Schedular Temporary Total Evaluation and 38 CFR 3.105(e)

  
38 CFR 3.105(e) applies to reductions from the period of total disability specified in DCs providing for indefinite periods of schedular temporary total evaluation because these evaluations are most often awarded prospectively (total disability is still ongoing at the time of the rating). 
 
At time of rating the decision maker will not know either one of the following:
  • the date that a future evaluation will replace the 100-percent rate, or
  • the level of evaluation that is appropriate to subsequently assign.  
Therefore, the 100-percent evaluation is assigned as an open or running evaluation and later assignment of a lower evaluation after the indefinite period of schedular temporary total evaluation can result in a reduction or discontinuance of compensation payments being made.
 
When preparing a rating decision prospectively establishing a temporary total evaluation for an indefinite period
  • enter the total disability from the effective date, and
  • assign a date for a future examination only if appropriate under M21-1, Part IV, Subpart ii, 1.A and the facts of record. 
Later, when the period of total disability has ended, before assigning a lower evaluation
  • 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. 
References:  For more information on

VIII.iv.8.D.3.d.  Retrospective Evaluations of Indefinite Periods of Schedular Temporary Total Evaluation and 38 CFR 3.105(e)

  
It is possible, in rare cases, that a temporary total evaluation under an indefinite period of schedular temporary total evaluation can be assigned retrospectively (when the period of total disability has already ended). 
 
This can occur when a claim has a long duration or where the period of total disability was short. 
 
In such cases the period of total disability and the subsequent disability level will be actually known at the time of rating.  Staging up to 100 percent and then down to the appropriate following level will not require application of the provisions of 38 CFR 3.105(e) as long as there is not a reduction in compensation payments currently being made. 
 
Important:  If the total evaluation is reduced as part of a staged rating in the award for the original claim for such disability, then the provisions of 38 CFR 3.105(e) do not apply.

VIII.iv.8.D.3.e.  Cancer Evaluations

  
Almost all cancers are evaluated using the same analysis.  See the table below for a description.
 
Stage
Description
1
A 100-percent evaluation is assigned for active cancer. This rating is typically assigned prospectively and can run indefinitely. If permanence is not conceded, schedule a review examination based on the evidence of record to ascertain continued status of active cancer or treatment.
2
Evidence is submitted or obtained that there is no further surgical, x-ray, chemotherapy, or other qualifying antineoplastic treatment because the cancer is inactive.
3
When a cancer is being evaluated prospectively, such that the period of active symptoms is at or near the time of the analysis and associated decision making, VA schedules an examination no sooner than six months after discontinuance of the treatment or evidence of the cessation of active disease to determine whether there has been local recurrence or metastasis.
 
In cases where the examination finds that the cancer is not active and/or does not require further treatment, the examination will also provide information for use in determining a rating based on residuals.
 
Notes:
  • Treatment records are insufficient to serve as the requirement for a VA examination.
  • Where VA records exist, check the most current records in Compensation and Pension Records Interchange before ordering the examination to ensure that the cancer is no longer active and that the Veteran has not received antineoplastic treatment for at least six months.
  • For guidance on evaluating cancer retrospectively, refer to the exception in Step 4.
4
VA takes rating action to reduce the total evaluation to an evaluation for residuals from an appropriate effective date based on the examination results and any other evidence of record.
 
Important:  Any change in evaluation shall be subject to the provisions of 38 CFR 3.105(e) (requiring a proposed reduction, a 60-day opportunity to respond, and prospective reduction or discontinuance effective the last day of the month in which a 60-day period from the date of notice of the final rating action expires).
 
Exception:  As the court held in Tatum v. Shinseki, 24 Vet.App. 139 (2010), 38 CFR 3.105(e) requirements are not applicable when the reduction is part of a staged rating assigned in the initial evaluation of the disability.  In that circumstance, once examination results or other medical evidence adequate for rating purposes showing residuals of the cancer are received, the total evaluation can be staged down on a facts-found basis to a date as early as six months after discontinuance of treatment – even if that date was before the date of the examination, if needed, subject to two important related principles:
  • the evidence must support the reduction on the date chosen, and
  • the facts-found date of reduction cannot take effect earlier than six months following cessation of treatment for the malignant neoplasm.
Reference:  For more information on scheduling review examinations, see M21-1, Part IV, Subpart ii, 1.A and B.

VIII.iv.8.D.3.f.  Example:  Staged Cancer Evaluation

  
Facts:
  • An original claim for service connection 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. 
Result:
  • 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.  
Explanation:
  • 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.