vlb-all-products

vlb-c-file-manual


  • Topics

  • Member Statistics

    • Total Members
      16,127
    • Most Online
      3,604

    Newest Member
    biorob
    Joined
  • Forum Statistics

    • Total Topics
      61,597
    • Total Posts
      397,507
  • Posts

    • IF the VA "reduces" (cuts) your SMC S, then fight it as a reduction.  Remember, VA has to jump through all the hoops to reduce you, and going from 100% plus SMC S, to 100% is a reduction in rating.   File a nod to said reduction, if it happens, and argue that VA did not comply with this, below:  3.344 Stabilization of disability evaluations. (a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind. (b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. (c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.   If VA argues they made CUE in awarding said SMC S, well then make them show it was UNDEBATABLE, that you did not qualify for SMC S.  For example, did they do a C and p exam where the examiner said you were definately "not" substantially confined?  They would have to have medical evidence that you DID NOT meet SMC S eligibility, and the burden would be on them to prove you did not meet it.   Also, if the VA made 2 or 3 decisions, and continued your SMC S, then VA is admitting they THOUGHT you were entitled to SMC S, therefore, its not undebatable..even VA is not clear on it!!   Cue is tough for us, make it tough for them, too.  Use their words and ratings against them.  
    • Roger that Navy4life  You did a well prepared Job on your part! other veteran should learn from this.
    • Me too. I was in Atlanta the other day and listening to my local radio stations via my phone when I heard part of an advertisement, so I looked it up and found that.
    • Just to clarify there weren't any errors in my informal hearing.  The errors that i received were in the decision/SOC because the DRO made the egregious error by refuting my medical opinion (Nexus Letter) I submitted from my VA Podiatrist.  A DRO can not refute a medical opinion because he is not a medical expert.  The DRO unfairly adjudicated the issues per the VA requirements of CFR 3.102, reasonable doubt, has not adequately applied CVA precedent opinion Moore V. Derwinski, relative equipoise was not adequately addressed and the doctor's highly probative IMO was not reconciled by the CP exam refuting opinions.  Possibly the most egregious error by the DRO, is that the DRO denied based on the DRO's own "non-medical" opinion.  The DRO is not qualified to refute an IMO opinion of the doctor's stature. That was the basis for the new DRO over turning my decision.  She told me that she was not sure why the other DRO denied me because the Nexus Letter was one of the best she had seen.  





Kirk

Kidney Transplant

11 posts in this topic

I am 100% p&t sc for renal failure requiring dialysis. I just had a kidney transplant last month. In reading the CFR it says that a kidney transplant qualifies for 100% for one year post transplant and then it is rated as renal insufficiency not less than 30%. Under renal failure requiring regular dialysis it lists it as 100% p&t.

Having been on dialysis for 9 years and 100% p&t for 8 years will I be reduced one year from my transplant? I'm really unclear on this. Any help would be appreciated

Thanks,

Kirk

Share this post


Link to post
Share on other sites



Many people have tried to predict "what the VA will do" without success, in part, because the VA is famous for applying, or not applying regulations, in an inconsistent manner as they see fit. That being said, I dont think they will reduce your rating... I think they have to have "material improvement" to reduce a P and T rating.

Share this post


Link to post
Share on other sites

"Permanent and Total" actually refers to Non Service Connected Pension. I think what you meant was that you are service connected for renal failure evaluated at 100 percent.

Before I say anything more, have the doctors said anything about still needing dialysis (even if it's just LESS dialysis?) after the transplant?

I am 100% p&t sc for renal failure requiring dialysis. I just had a kidney transplant last month. In reading the CFR it says that a kidney transplant qualifies for 100% for one year post transplant and then it is rated as renal insufficiency not less than 30%. Under renal failure requiring regular dialysis it lists it as 100% p&t.

Having been on dialysis for 9 years and 100% p&t for 8 years will I be reduced one year from my transplant? I'm really unclear on this. Any help would be appreciated

Thanks,

Kirk

Share this post


Link to post
Share on other sites
"Permanent and Total" actually refers to Non Service Connected Pension. I think what you meant was that you are service connected for renal failure evaluated at 100 percent.

I am 100% Permanent and Total AND Service Connected. You may want to check your Info.?

David

Share this post


Link to post
Share on other sites

You answered your own question. If the regs state that your condition will be re evaluated and you are no longer on Dialysis, then you should amd most likely be reduced to a level of disability that commesurates with your condition.

VA Comp may state Permanent and Total but nothing is permanent and total unless you fall under the 20 year rule.

There are protections for 10 years also but these protections are for severance of Service connection and do not touch periodic adjustments due to re evaluations.

James is actually correct as Permanent and total does not mean that the VA cannot examine you at will and reduce you upon improvement of a condition. Permanent and total for compensation purposes just means a condition is considered to be static with little room for improvement, but with a transplant, wether it be heart, Kidneys, or lungs, as long as they are successful does improve the conditon.

Hang in there.

J

Share this post


Link to post
Share on other sites

The regs say you are to be reviewed one year post op after a kidney transplant. The good news at best is that you're off dialysis and have at least one functioning kidney. The not so good news is that the VA will want to reduce your rating to 30%. I was working with a veteran who the VA overlooked for that one year post-op C & P exam, but they caught up with him 12 years later and ordered the examination, and then proposed to reduce him. The regs say that if a veteran has a rating for five or more years, the VA must prove evidence of sustained improvement, and it can't be based on just one exam. It also states that the follow-up exams must be as thorough as the original C & P exam that resulted in the vet's 100% rating.

He didn't want to go through the trouble of fighting the reduction, which was his choice, but I reminded him that the conditions that were secondary outcomes of the immunosuppressant drug therapy he had been taking for years, to include skin cancer, GERD, gall stones that led to surgery, and other conditions should be claimed. I haven't heard from him lately, so I hope he contacted a VSO or someone to follow through.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now