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!

[vaf]

Thanks -- I've been trying to find informaton on what the Board considered "sustained improvement." I'm guessing they're trying to make up for the fact that they forgot to examine him a year after surgery, and didn't discover the oversight until now. They're probably basing the proposal on the veteran's being off dialysis and holding down a full-time job. But he's got a lot of complications from the meds he's on, secondary effects that we'll be claiming, and that I believe should have been an inferred claim. Immunosuppressant drugs lower the body's ability to fight infection. The veteran's had skin cancer, as well as gall bladder removal, which I'm trying to connect to the use of the immunosuppressants he takes.

I've asked him to get an IMO from his physician to connect these conditions.

[Pete53]

Seems to me that having to have a transplant does not mean that you got well and now there are other things to worry about.

[deltaj]

Thanks -- I've been trying to find informaton on what the Board considered "sustained improvement." I'm guessing they're trying to make up for the fact that they forgot to examine him a year after surgery, and didn't discover the oversight until now. They're probably basing the proposal on the veteran's being off dialysis and holding down a full-time job. But he's got a lot of complications from the meds he's on, secondary effects that we'll be claiming, and that I believe should have been an inferred claim. Immunosuppressant drugs lower the body's ability to fight infection. The veteran's had skin cancer, as well as gall bladder removal, which I'm trying to connect to the use of the immunosuppressants he takes.

I've asked him to get an IMO from his physician to connect these conditions.

Make sure this veteran cites 38 CFR 3.343 and 38 CFR 3.344 in his appeal of the reduction. Keep in mind that filing any additional claims for service connection because this would require additional examinations. This seems to be a case of wrongful reduction without regard to the provisions of 38 CFR 3.343 and 38 CFR 3.344. (prior versions of these regulations were worded more fairly to the veteran.) By searching google under transplant AND reduction AND veteran I found a reference to a case by Richard Peale concerning his transplant and the decision seems to be made by the federal circuit but by searching under the last name Peale at the U.S. Court of Veterans Appeals I found nothing about it. I also searching under Richard Peale and federal circuit. I again found nothing. Does anyone know how to access 1999 federal circuit decisions to check the index of cases? I found some interesting cases by searching under sustained improvement AND reduction AND veteran. There seems to be at least one case of reduction after a sustained period of employment in Lawrence Greyzck v. West for a veteran who was employed for 12 years. A complete copy of the decision can only be found by searching under the case number 97-2204 at the website of the U.S. Court of Appeals for Veterans Claims. That case was unfavorable to the veteran but is cited favorably in other cases so there may be a federal circuit decision. In his appeal this veteran and his representative should point out that this veteran's sedentary occupation and his use of large humbers of immunosuppressant medications do not show this veteran attained improvement under the ordinary conditions of life. How many functioning kidneys does this veteran have? I suspect the answer is one and if so, having one functioning kidney is not an ordinary condition of life and requires a sedentary lifestyle and reduced protein intake in order to sustain the life of the kidney.

Edited August 21, 2009 by deltaj

[Bonzai]

There is also the condition of End Stage Renal Disease (ESRD) to be taken into account. When a patient has ESRD, it means that their kidneys have failed completely. The interesting part of this diagnosis, is that the diagnosis doesn't go away after a patient receives a kidney transplant. So therefore, they are still considered as having renal failure. There are also the long-term effects of autoimmune suppressant drugs, preventing the rejection of the kidney, to be considered; of which you have mentioned a few.

For case favorable to the veteran with kidney failure and cancer, click Here.

I hope this helps,

Louis

[broncovet]

Frankly, I think the VA is being more than a little bit ridicilious. If a Veteran looses other organs, say maybe gets his legs blown off, is the VA gonna say his condition "improved" when he got artificial legs, because he was able to learn to walk, and cut his disability? This proposed reduction is more of an insult than anything else...JMHO

You just dont "improve" from the loss of an organ. The Veteran needs to fight this, tooth and nail. Once a body part is lost, the Veteran merely adapts to this loss of organ and compensates in the best way possible.

I think the reason you cant find any precedent is that no idiot government bureaucrat has ever even considered this insane and inhumane effort for the government to save money before.

I can see it all now..."Grandpa, we are cutting your disability benefits because you are able to get around much better now with your new seeing eye dog and your new power wheel chair."

If I recall, the VA has to have the C and P "physician" (or at least a QTC quack) lie and say something to the effect "The Veterans loss of organ materially improved" in order to have this reduction of benefits stick. I dont know how long this Veteran has been SC'd...but if it has been a while, ONE lying QTC quack wont cut it, either. They would have to have at least TWO lying QTC quacks say that "the Veterans loss of organ materially improved. "

If they do get TWO QTC quacks to lie for money, then both of those quacks need to be investigated as that statement contradicts known medical knowledge..body organs just dont grow back..if your heart or kidneys fail, you get new ones, try to get by temporarily with dialysis or artificial heart, or you die. Period.

Edited August 21, 2009 by broncovet

[vaf]

The veteran has one working kidney (and two dead ones), you're right... I'll certainly look into all of this, since the meter is running on the 60 days he had to submit new evidence. I am so grateful to all of you for your help!