tdiu The Saga Continues

[63SIERRA]

Ok aside from everything else im battling for, I came to a realization. back in 04 when I fell deathy ill with my service related hepc which at the time was rated at zero percent I was put into a 48 week treatment of chemotherapy that means some very powerful meds that can kill you, and have killed folks., They bring u to the edge of death, to kill the virus. I was very sick most of that year of treatment . incapacitating episodes where I could barely get off the sofa for days, vomiting, 20 lbs weight loss, weakness , tired, abdominal pain, sweating chills,near constant burning diareeha , nausea , depression, rage, ect. I refiled for an increase near the end of my treatment and the va granted comp at 40 percent/. I recently read the regulations, and at least while I was on the chemo, I should have been rated 60 to 100 percent .. ALSO, even if they lowballed me at 60, that would have made me eligible for temporary TDIU. So what I want to know is specifically what I have to do, to try and get my temporary rating of 60 to 100 percent for the year I was being treated.

do I reopen, file a new claim, file a cue claim, file a special claim, ect.

also while I was on the chemo, a side effect is depression, so I was on depression meds for abt a year, and still depressed.

I struggled to pay my bills, and could only do a few service calls a week, and I had to hire my buddy to drive me around because I didnt trust myself, and was scared to faint at the wheel/ I was one sick puppy, and had to work during the hellish treatment of chemo. thse dirty bastards could have told me I was eligible for that compensation. they knew how sick I was my liver enzyme count was over 6.3 million and the liver biopsy said stage 3.5 to 4 out of possible worse 5. liver disease.

Edited November 5, 2013 by 63SIERRA

[free_spirit_etc]

so would that be 6 months after the surgery? I did not get chemo for the kidney they just removed it. I was incapacitated for abt a month, from the 13 inch scar, and trama to my body. They told me it was definitiely renal cell carcinoma cancer.

Yes. It should be. You don't actually have to be considered "incapacitated" to be rated at 100% for cancer. Cancer is 100%. That is the only rating they have for cancer. You either have it or you don't. And yes, the rating should be continued for at least 6 months after curative treatment - until you are re-evaluated. If there is no sign of cancer at the re-evaluation, then they rate on residuals. Did you file your claim for cancer within the 6 month time frame of your surgery? If so - you should have been rated 100% for whatever time is within that time-frame. Or actually, did the VA treat the cancer? If so -- then you might be able to argue that the VA records were an informal claim - if you followed up by filing a claim within one year.

(3) Reports of Examination or Hospitalization by VA or Military (38 CFR 3.157(b)

(a) Evidence of examination or hospitalization in a VA or uniformed services health care facility is an informal claim for an increased evaluation of a condition previously service connected. Additional information regarding uniformed services medical facilities may be found in Subchapter III. A notice of hospitalization may not suffice as an informal claim if a veteran service connected for one disability is hospitalized for a different disability for which service connection has not been granted. If the medical evidence shows treatment for the service-connected disability or manifestations of the service-connected disability, the provisions of 38 CFR 3.400(o) pertaining to the 1-year limitation for receipt of a claim do not apply. Accept the date of admission for treatment for a service-connected disability as the date of claim for increased evaluation. Establish and maintain control of the claim.

(b) Accept evidence of examination or hospitalization at a VA or uniformed services health care facility as an informal claim if a claim specifying the benefit sought is received within 1 year of treatment. Liberally interpret reasonable probability of a valid claim. After final adjudication of an original claim, if subsequent communication from a claimant alleges facts that present the reasonable probability of a valid claim, accept the claimant's written allegations as a reopened claim or a claim for increase. The claimant need not specifically state that it is a claim or identify the exact benefit sought. Establish and maintain control of the claim.

Edited November 2, 2013 by free_spirit_etc

[free_spirit_etc]

Sierra68,

I am certainly not trying to diminish how horrid the chemotherapy was on you. In fact, I am gung ho to try to help you figure out a way to be adequately compensated. But since we are talking about a final unappealed claim, the only way I know you could have that increased would be to file a CUE. The standards for CUE are high. You don't just have to show that you were more disabled at that time, you have to show that based on the evidence that was in the record when the decision was made, the VA made a clear and unmistakable error in granting you 40%.

So that is why I asked you what evidence is in the record to show that not only that you were disabled to the 60% rate, but that the RO made a serious error in deciding the claim.

The thing that is puzzling to me is that the biggest difference between 40 and 60, aside from the weight loss, is the amount of time you experienced the symptoms. So if the record shows that you experienced those symptoms for a long period of time, maybe you have a CUE on that basis. I am not sure. You would need to research a bit and find what decisions were made and the reasons on similar claims.

What is the reason the VA gave you on the SOC for why they rated you at 40% rather than 60%?

[63SIERRA]

ok heres what it said/pretty much verbaitem/

the evaluation of hep c is increases to 40 percent disabling effective nov 2002.

va treatment records show u reported on 11-00-02 for a first visit with complaints of feeling ill and fatigued and episodes of lightheadedness.you were staerted on medication to normalize your liver funtion tests.. (SEE HOW THEY DOWNPLAY, THEY DIDNT SAY, YOU WERE STARTED ON STRONG MEDS THAT COULD KILL YOU, AND WILL MAKE YOU VERY ILL TO KILL A LIFE THREATINING VIRUS THAT IS EATING YOUR LIVER).

Report of 11-00-03 shows you would continue on medication for an additional 48 weeks.

Va eaxamination report of 12=00-03 shows you reported being self employed.as an appliance repairman, You complained of occasional vomiting, chronic flu like symptoms, frequent abdominl pain, nausea, and mild weakness, on examination there was a 15 pound weight loss over the last 6 months and minimal muscle strength and wasting. The findings warrant a 40 percent evaluaton based on findings of daily fatigue, minor weight loss, nausea, and vomiting

an evaluation of 40 percent is assigned from nov 2002 the date the treatment records show you presented with a worseing of symptoms. A higher eval of 60 percent is not assigned unless there is chronic liver disaease without cirrhosis, but with symptoms of daily fatigue ,malaise, and anorexia with substatial weight loss (or other indication of malnutrition) and heatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise , nausea, vomiting, anorexia, arthalgia, and right upper quadrant pain) having a total duration of at least 6 weeks during the past 12 month period but not occuring constantly.

[63SIERRA]

it say in thier own words frequent abdominal pain, , nausea, and mild weakness. everyone knows how much abdonminal pain hurts and how debilitating it can be. that not including feeling nausiated, , lightheaded, and dizzy all at the same time. How can this not be debilitating and they expect a person to just jump up running and go to work feeling like you are abt to crap on yourself. ALL DAY.

Edited November 3, 2013 by 63SIERRA

[63SIERRA]

ok heres how they decided my kidney cancer claim

service connection for right nephrectomy due to renal cancer as secondary to the service connected disability of hepatits c

we have assigned a 30 percent evaluation for your kidney removal based on

minumum evaluation assigned for one kidney removal

a higher eval of 60 percent based on renal dysfunction is not warranted unless there is

constant albuminuria with some edema or

definite decrease in kidney function or

hypertension at least 40 percent disabling under diagnostic code 7101

my way of thinking is wouldnt taking one of a persons kidney out " decrease kidney function, ? I dont think they work intermittently, like one works while the other doesnt, they work together to filter the blood.

[63SIERRA]

maybe they are robbing me on the kidney cancer because its secondary to hepc?