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

[63SIERRA]

FREE would that also apply to the hep c, 6 months after chemo ended?

[free_spirit_etc]

No. That specific rating wouldn't apply to hep c. The rating was based on having cancer; not on the treatment. So it doesn't matter what type of treatment you have for cancer (chemo, radiation, surgery, etc.) the rating is based on having cancer. Cancer is 100%. It continues to be 100% until 6 months after you finish treatment and are not showing any cancer.

The rating for chemo for Hep C would be different. I would think it would be based on the level of disability the treatment created. However, even with the cancer ratings, the rating is not based on receiving chemotherapy. It is based on the fact the person has active cancer.

FREE would that also apply to the hep c, 6 months after chemo ended?

[free_spirit_etc]

Sierra68,

What is the evidence that you think showed you were entitled to 60% rather than 40%? It looks like the major difference between the two is either the significance of the weight loss, or the type / duration of the symptoms. At first glance, I thought that it should be 60% because the symptoms lasted longer than six weeks.

Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly 60

Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period 40

But in this BVA case, the BVA only granted the veteran 40% for the year he received treatment http://www.va.gov/vetapp12/Files1/1202514.txt

With a 20 pound weight loss, you wouldn't qualify under the significant weight loss -

http://www.va.gov/vetapp08/files3/0821665.txt

"Substantial weight loss is a loss of greater than 20 percent

of the individual's baseline weight, sustained for 3 months
or longer. 38 C.F.R. § 4.112 (2007). Minor weight loss is a
weight loss of 10 to 20 percent of the baseline weight,
sustained for 3 months or longer. 38 C.F.R. § 4.112.
Baseline weight means the average weight for the 2 year
period preceding onset of the disease. 38 C.F.R. § 4.112."

The above case discusses how the BVA applied the difference between a 40% and 60% rating.

"The evidence of record indicates that an increased evaluation
for hepatitis C with cirrhosis of the liver is warranted.
The medical evidence of record shows that the veteran has
consistently reported daily fatigue and malaise. Beginning
in 2005, the veteran also reported weakness, abdominal pain,
and nausea. The veteran's testimony is competent to
establish his symptoms. Espiritu v. Derwinski, 2 Vet. App.
492, 494-495 (1992) (holding that a layperson is competent to
provide evidence on the occurrence of observable symptoms).
In 2005, a liver ultrasound found hepatomegaly. Thus, the
veteran's symptoms more closely approximate the requirement
for a 40 percent, rather than 10 percent, evaluation. See
38 C.F.R. § 4.7 (2007) (noting that where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating).
Accordingly, and resolving all reasonable doubt in favor of
the veteran, see Gilbert v. Derwinski, 1 Vet. App. 49 (1990),
a 40 percent evaluation for service-connected hepatitis C
with cirrhosis of the liver is warranted.

An evaluation in excess of 40 percent is not warranted for
hepatitis C with cirrhosis of the liver. 38 C.F.R. § 4.114,
Diagnostic Code 7354. The medical evidence of record does
not demonstrate substantial weight loss or incapacitating
episodes with symptoms such as anorexia and arthralgia, and
right upper quadrant pain. 38 C.F.R. § 4.114, Diagnostic
Code 7354 (holding that a 60 percent rating is assigned for
daily fatigue, malaise, and anorexia, with substantial weight
loss (or other indication of malnutrition), and hepatomegaly,
or incapacitating episodes (with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain) having a total duration of at least 6
weeks during the past 12-month period, but not occurring
constantly)."

So this might be a hard one to fight, especially as you would need to file a CUE claim, asserting that the RO made a clear and unmistakable error in rating you at 40% based on the evidence in the record. The time-frame to appeal a 2004 decision has ended.

Incapcitating episodes:

"http://www.va.gov/vetapp08/files3/0821665.txt

"An incapacitating episode is a period of acute signs and

symptoms severe enough to require bed rest and treatment by a
physician."

Edited November 2, 2013 by free_spirit_etc

[63SIERRA]

My viral load count was one of the highest my doc had ever seen., They had to put me on a strong dose, and It caused alot more symptoms than they listed. I had many incapacitating episodes where I couldnt get off the sofa. I was also depressed. they say nothing abt that in my rating. they dont mention I was on depression meds either, or the chronic bad diaharhea.

Edited November 2, 2013 by 63SIERRA

[63SIERRA]

Also Free that bva case looks to be dealing with his ongoing symptoms, not the 48 weeks he was in treatment . Im wanting the 60 to 100 percent for the 48 weeks I was getting chemo. its basicallly the same meds they give cancer patients. while on the treatment u have to get tests almost every 2 weeks, so thats a trip to the hospital for a blood test. I couldnt drive so my wife drove. I never got a nickle of travel pay either, because I didnt know abt it then. Between being sick from the chemo, and going to doctors appts, even superman couldnt have held gainful employment. It affects people differently and according to how bad your liver already is and how heavy a dose they give you, dictiates how well u can cope with it.

Edited November 2, 2013 by 63SIERRA

[63SIERRA]

Sorry. I misunderstood. That's why I asked if the chemo was for the kidney cancer. If so, the cancer should have been rated at 100% until at least 6 months after treatment ends.

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.