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

[free_spirit_etc]

Not exactly the same issue as yours, but similar. http://www.seankendalllaw.net/blog/100-percent-rating-following-prostate-cancer-surgery.cfm

So some of the information might be useful.

Did they provide you with a rating exam before they rated you for the kidney cancer?

[free_spirit_etc]

Dang... I was trying to see if you could claim you should still be 100% until they filled those obligations. But based on the case the lawyer posted on the blog - it doesn't look like it. They only have to propose to reduce your rating, if you are already currently receiving benefits for the condition. http://www.leagle.com/decision/In%20FCO%2020110707184

But it seems like you should be able to get 100% for a the period from when they detected the cancer until at least 6 months from when the treatment was stopped. They should have done something like a "staged rating" on this. (i.e. 100% from X through X, and 30% after that).

Edited November 3, 2013 by free_spirit_etc

[free_spirit_etc]

Did you have a VSO with this claim?

[free_spirit_etc]

I am thinking filing the formal claim within a few months of the date of the exam should be covered under

C.F.R. § 3.157(b)(1) - for setting the date of the claim at the date of the exam that found the cancer. What date did the VA give you as the effective date of the claim?

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

[63SIERRA]

Did you have a VSO with this claim?

yes DAV

EFFECTIVE DATE FOR SERVICE CONNECT OF KIDNEY CANCER/ july 2012 I had surgery october 31 2012

so they backdated it to when first discovered, but paid me 30 percent the whole time. for the first 3 month after surgery, I could hardly walk from the pain of the surgery. Ihad to tie a rope to the leg of my bed to use for leverage to help pull myself up, then stand, then walk. It was a process. The 13 inch scar was very tender and I had to be careful not to tear it open. If they think I could have worked for the first 3 to 6 months after kidney surgery, they are crazy. I Consider myself just as tough as the next fella, but it had me hating life for a while.

Edited November 3, 2013 by 63SIERRA

[free_spirit_etc]

October 2012 or October 2011? I thought you said 2 years in a previous post. If it was 2012 - you should still be within your appeal period. If not, you probably want to consider filing a CUE claim that you should have been granted 100% for cancer from the initial date of the claim until AT LEAST six months after surgery. It could even be longer -- as they were monitoring you pretty closely, getting follow-up care, etc. So your "treatment" did not "end" the day of your surgery. I would think you were still under some type of what could be considered treatment for some time after that before it changed to just monitoring for recurrence.

Also -- I would think they should have considered whether you were entitled to any SMC for a time after your surgery.