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]

I'll do all of that, bless you all, I don't know what I'd do without you guys.

I haven't seen any of the veteran's records prior to this recent proposal to reduce. We're waiting for them now, but regarding nephritis, I'll address that with him tomorrow, at least he can give me a verbal report so I can head in the right direction.

The veteran is working full-time, in an office job, air-conditioned, etc. He had a job outdoors, on a route delivery service, but had to give that up when he became ill.

He's been working at his current job for several years, and it's been 11 or 12 years since his transplant surgery, and as mentioned before, he never received the "mandatory" C & P that was supposed to have been scheduled one year after surgery. He wasn't called in until this past May.

The statement about a diagnosis of end stage renal disease never going away, even after kidney transplant surgery -- is that what the minimum 30% is supposed to cover in the absence of dialysis treatments? There's been no consideration given to all the secondary disabilities that have resulted from prolonged use of immunosuppressant drug therapy to fight organ rejection.

Do you think it's reasonable for me to pursue an implied claim back to the respective initial dates of diagnosis of these conditions by the VA, since the veteran gets his treatment there -- technically -- although he was referred to a civilian hospital and physician for the transplant issues?

Also you need to review 38 CFR 3.309. Did this veteran develop hypertension (high blood pressure), nephritis (inflammation of kidney), or renal calculi (kidney stone) in service? Note that under the regulation that hypertension is an early symptom of cardiovascular-renal disease. IF THIS VETERAN DEVELOPED HYPERTENSION, NEPHRITIS, OR RENAL CALCULI IN SERVICE THIS VETERAN SHOULD TESTIFY TO THAT DURING THE BVA HEARING BECAUSE V.A. SOMETIMES LOSES OR SHREDS SERVICE MEDICAL RECORDS AND BECAUSE A LOT OF VETERANS HAD THEIR RECORDS BURN AT THE NATIONAL PERSONNEL RECORDS CENTER IN THE EARLY 1970s. As to pursuing the issue of an inferred or implied claim back to discharge this is difficult to do without the claims folder. You need to know what this veteran wrote on his application for compensation and pension as the service connected conditions applied for and you need to know what V.A.'s first rating decision was in terms of diagnosis and V.A.'s reasons for the diagnosis. If you win that issue of inferred claim will V.A. grant pension back to date of discharge and then try to recoup that retro payment of pension from current compensation or is there some other outcome that could happen? This veteran has an upcoming BVA hearing and one of the things BVA may ask him about under oath is how long he had been employed continuously at the time of the examination which resulted in reduction of his 100% rating to 30%. HOW LONG HAD THIS VETERAN BEEN WORKING CONTINUOUSLY AT THE TIME OF THE EXAMINATION WHICH RESULTED IN REDUCTION? WAS THIS VETERAN EVEN ASKED AT THE V.A. EXAMINATION USED TO REDUCE HIS RATING HOW LONG HE HAD BEEN WORKING? I'M ASKING THESE BECAUSE OF THE CLEAR AND CONVINCING ERROR STANDARD OF 38 CFR 3.343 ©. This veteran doesn't have copies of his records because those records are at BVA and this is handicapping the veteran and his representative for arguing for clear and unmistakable error in the original decision to reduce.

Edited August 24, 2009 by deltaj

[vaf]

This is going to be a real goat-rope. The VA doctor the vet saw last week told the vet he "wasn't disabled" and refused to write an IMO regarding why the rating shouldn't be reduced. I've asked the vet to get any civilian records from treatment he may have received from civilian doctors (on referral basis), and we'd go from there. The medical evidence would be nice, but I have a feeling we're going to have to depend a lot on legal argument, and clinicially documented links between the immunosuppressants he takes and secondary disabilities he's developed.

We're still waiting for the VAMC records, but if the meter runs out, we'll do the best we can without them.

[deltaj]

This is going to be a real goat-rope. The VA doctor the vet saw last week told the vet he "wasn't disabled" and refused to write an IMO regarding why the rating shouldn't be reduced. I've asked the vet to get any civilian records from treatment he may have received from civilian doctors (on referral basis), and we'd go from there. The medical evidence would be nice, but I have a feeling we're going to have to depend a lot on legal argument, and clinicially documented links between the immunosuppressants he takes and secondary disabilities he's developed.

We're still waiting for the VAMC records, but if the meter runs out, we'll do the best we can without them.

I just recently learned of 38 USC 1163 and believe that it may be pertinent.

[poolguy11550]

This is a simple case and it all boils down to what is the current state of the S/C condition. What are the labs telling his doctors? What permanent conditions have came about from the surgery or secondary conditions from the S/C condition?

1. If the kidney disease has generally improved and labs show normal kidney function then the reduction is warranted.

The basis for this is simple- the S/C condition improved. Although, there is a permanent residual, the 30% rating would reflect the current status of the condition. You generally don't loose a kidney during a transplant, but rather a kidney is added to improve the overall kidney function (which is to filter out toxins). That is why the labs are important, because they generally show the present state of the condition.

2. Since the R/O has made the proposal, go ahead and file any secondary claims (if not done so already), off the top of my head, 10% for the painful scar (if it is), and HTP (if the vet has such).

Any comments on the "reasons and bases" attached in my previous post for the decision would be greatly appreciated.

[vaf]

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!

[Ricky]

The problem that you will face in the reduction of the 100 percent is that it was a temp rating based upon the results of the mandatory exam.

In a legal sense the vet has actually gotten one over on the VA as they failed to conduct the exam therefore, he continued to receive the 100 percent as he should have. However, they have now conducted the exam and based upon the write up you provided it clearly warrants a 30 percent rating.

Tell him to be thankful they gave him the extra years of 100 percent pay. If he has residuals that can be connected to the transplant and warrant a rating higher than 30 percent then that should be presented at the hearing.