tdiu Kidney Transplant And Subsequent Va Proposal To Reduce Rating

[vaf]

The veteran underwent a medical discharge after nine years active duty, due to kidney failure. He underwent a transplant in 1998, and was supposed to undergo a follow-up C & P in 1999, which didn't take place until earlier this year. He was rated 100% until now, having received a proposal to reduce down to the minimum, which is 30%. He works full-time in an office job, sedentary work, and does not want to or have a need to pursue TDIU. However, he is suffering secondary effects from the immunosuppressant drugs (has had skin cancer, has GERD, and a suspected but yet undiagnosed case of sleep apnea), has had his gall bladder removed, all which was not in place before the surgery, and which have not been claimed separately, and therefore, not rated. He receives his treatment from the VA.

We've requested his records from the VAMC and the VARO, however, we won't see his claims file anytime soon, probably not before his hearing (he's filed an NOD and asked for a hearing).

I'm wondering if anyone here has successfully fought a proposal to reduce a disability rating post-kidney transplant, after five or more years have passed since the surgery, who is not TDIU. If so, I'd be interested to hear how you handled the NOD and how you framed your argument. Thanks!

[deltaj]

Thank you, yes the vet has had numerous outpatient surgeries for skin cancer, has hypertension and GERD. Also a gall bladder removal surgery. I've found clinical discussions of links between all and kidney disease/kidney transplant surgery. We're in the process now of having his doctors write IMO's linking these conditions to his kidney disease/kidney transplant surgery.

I'll ask him about the scar, he may not realize he can claim it if painful.

We're waiting for copies of his medical records from the VAMC and his military medical records, as well as a copy of his claims file (which I don't think we'll get anytime soon, or in time before the meter runs out on the proposal to reduce). I know we need to see those lab results.

He did write an objection and asked for a hearing, which buys him some time.

Thanks again!

I wondering if this veteran could obtain medical evidence and file a claim for service connected hypertension secondary to his kidney condition.

[vaf]

Yes, as Clown Man said, we know the VA messed up not scheduling him for a C & P one year after surgery, as was supposed to happen. They lost track of him for 11 years. My point is that we haven't seen his labs yet, so I don't know if the 30% is applicable or not, since we don't know the lab results, and the rating criteria is based on certain lab readings. So, it's not an automatic reduction to 30%, unless the labs justify it. He may very well qualify for an 80% rating, for instance.

He still suffers from fatigue, hypertension, had gall bladder surgery, has GERD, and of course the biggie, reoccurring skin cancers, so we plan to try to mitigate whatever reduction he has by pursuing ratings for all these conditions.

This is the first vet with an organ transplant who I've tried to help, have any of you got experience with a vet in a similar situation?

[Philip Rogers]

Just my thoughts but since he's been rated 100% over 10 yrs, even tho it's an error, the VA still can't reduce him on the basis of one C&P exam but needs to base any reduction on the complete history. I think he can stall it for at least 6-12 months, if not permanently. That being the case they'll need to explain the reason and bases for the reduction, in detail.

pr

[poolguy11550]

Just my thoughts but since he's been rated 100% over 10 yrs, even tho it's an error, the VA still can't reduce him on the basis of one C&P exam but needs to base any reduction on the complete history. I think he can stall it for at least 6-12 months, if not permanently. That being the case they'll need to explain the reason and bases for the reduction, in detail.

pr

The reason would be simple, the veterans' condition improved (if so). That the VA did error lends more support to the VA, however, had the VA waited 20 years and one day- then the veteran would have the protected rating (and %) even with a VA error. The ten years does lend some protections but not to the %.

The fact of the matter here is what is the truth? Has the improved from the surgery?

[Philip Rogers]

I agree, poolguy11550, but that's like saying you have medication or a prosthesis and you are now better. I think there's a good argument for that, plus the one C&P exam theory. jmo

pr

The reason would be simple, the veterans' condition improved (if so). That the VA did error lends more support to the VA, however, had the VA waited 20 years and one day- then the veteran would have the protected rating (and %) even with a VA error. The ten years does lend some protections but not to the %.

The fact of the matter here is what is the truth? Has the improved from the surgery?

[vaf]

The veteran is off dialysis, but has developed a host of other problems he did not have during the time he underwent dialysis. This is a matter of choosing one's poison, although, he's in better shape to the extent that his life doesn't depend on dialysis -- now it depends on immunosuppressants.

The VA is looking solely at the fact that he's off dialysis. The extent of the "Reasons" part of the letter was two short paragraphs reviewing what the VA examined, and a cursory statement that he improved, without reviewing the specifics of his lab results, or any discussion of his medical history since the surgery, even though they're aware of the conditions he developed since then.

It was a very short letter, I got the impression that they wanted to play catch-up without having to give him too much information he could use to defend himself.