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]

Fabulous, thanks. I think a lot of this is the fact that the VA overlooked performing the C & P that was supposed to take place a year after surgery, and then all through the years until this year. The decision is a joke, just a few paragraphs of no real explanation as to why this is happening. The attached is a cut and paste of the rating decision, just the reasons and bases part, and in fact, I don't see where BUN was discussed at all. There's also no discussion of how the VA weighed this decision in consideration of his entire medical history.

He doesn't hold separate ratings for hypertension, skin cancer, GERD, gall bladder disease, or insomnia. He suffers from all of those, and they're on his records at the VA (which is why I want to pursue inferred claims as soon as I can see those records). No discussion of that at all.

I told him I need to see the C & P report and the labs from this most recent exam as soon as we can get them.

This attached file 97-2003 does not mention the date of examination. This is absolutely necessary for appeal because a rating in effect for 5 years are more is not supposed to be reduced based on one V.A. examination under 38 CFR 3.344©. (A rating reduced contrary to 38 CFR 3.344 © when in effect for 5 years or more based on one V.A. examination would be clear and unmistakable error.) Interestingly, the decision also does not mention an effective date other than the grant of the original rating. Also the decision does not mention how long this veteran was employed. Was this veteran working for 12 months or more at the time of V.A.'s decision to reduce this veteran's rating? If so read 38 CFR 3.343 © and use it in the appeal. In other words the Board may have reduced this veteran's 100% rating contary to the clear and convincing error standard of 38 CFR 3.343 ©. My computer is acting up. I HAVE INCLUDED THE LETTER C IN PARANTHESES IN EACH OF THESE REGULATION NUMBERS AND EACH TIME IT HAS DISPLAYED AS A C IN A CIRCLE WHEN I EDITED THIS POST.

Edited August 23, 2009 by deltaj

[deltaj]

I found this recent decision as to transplants and the way VA rates them:

http://www.va.gov/vetapp09/files1/0909396.txt

Creatine and BUN (Blood Urea Nitrogen) counts should be found in his Blood Chem reports.

There are other cases on kidney transplants at the BVA that could help you.

As far as I know creatine and blood urea nitrogen levels are used by doctors to help evaluate kidney function.

[sharon]

7531 Kidney transplant:

Following transplant surgery .............. 100

Thereafter: Rate on residuals as renal

dysfunction, minimum rating ........... 30

Note—The 100 percent evaluation

shall be assigned as of the date of

hospital admission for transplant

surgery and shall continue with a

mandatory VA examination one

year following hospital discharge.

Any change in evaluation based

upon that or any subsequent examination

shall be subject to the provisions

of § 3.105(e) of this chapter.

Edited August 23, 2009 by sharon

[Bonzai]

Does this mean that the residuals are rated as 30% with no recourse? It would be nice if they spelled out exactly what is meant by residuals. I'm sure that they don't include skin cancer, as not every kidney recipient gets it. Would this be a case where an additional amount of time is requested to prepared a NOD, due to secondary conditions?

[deltaj]

Does this mean that the residuals are rated as 30% with no recourse? It would be nice if they spelled out exactly what is meant by residuals. I'm sure that they don't include skin cancer, as not every kidney recipient gets it. Would this be a case where an additional amount of time is requested to prepared a NOD, due to secondary conditions?

Was this veteran initially diagnosed with nephritis while in service? Nephritis is inflammation of a kidney. If this veteran was diagnosed with nephritis 38 CFR 4.115 is applicable. YOU ABSOLUTELY MUST LOOK AT THE RATING SCHEDULE ON THE GENITOURINARY SYSTEM FOUND IN THE SECOND VOLUME OF TITLE 38 CODE OF FEDERAL REGULATIONS TO SEE WHAT DISABILITIES ARE RATABLE SEPARATELY ACCORDING TO V.A.'S REGULATIONS. That regulation mentions that in nephritis, hypertension and heart disease are ratable separately. Here is what you do to get there to this regulation and others potentially applicable like 38 CFR 4.114a and 38 CFR 4.115b. First search google or another search engine for code of federal regulations. Then click on the link to search and/or browse the code of federal regulations. Then select Title 38 CFR from the list of volumes and go up to the top of the page and click continue. At the bottom of the page select volume 2 and then in the box at the top of the page in the box type in the word kidney and hit the search button. You'll get a link for the rating schedule for all disabilities and you then have to scroll down a long list of other disabilities to get to the genitourinary system and all of the V.A. rating schedule for the genitourinary system and secondary condition. If the condition is nephritis then there would be an inferred claim for hypertension in this case. One other thing I need to tell you is that if you scroll down the rating schedule past other disabilities for other body systems you'll eventually get to the diagnostic codes at the end of the rating schedule. If you look under the letter n in that list of disabilities you won't find nephritis. The list does include glomerulonephritis.

Edited August 25, 2009 by deltaj

[vaf]

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?

Edited August 23, 2009 by vaf