Question:
Hello Jim. You helped me out in the past. I finally heard back from VA on my claim. Question is: I had lung cancer - Claim was based upon my Blue Water Navy exposure to Agent Orange. VA did service-connect my lung cancer and residuals of my partial lung removal (lobectomy) but assigned it a 0 disability rating? I think that has to be in error (have yet to receive their package explaining how they determined 0 rating).
I had C & P exam with results that had my FEV1 score was below 55% predicted which by my calculations equates to 60% rating. One of the other tests showed FEV1/FVC ratio as higher in the 80% range but from what I found online with past appeal decisions the VA seems to be using FEV1 primarily as the Gold standard on how severe the COPD may be. Is this your understanding on this test? The other ratio is less reliable the longer you have had COPD. I had my lung cancer surgery in 2007. Would there be any other reason you can think of why they would service connect my lung cancer/residuals and assign a 0 disability rating? They also service connected my scar due to the surgery but with a 0 rating. They use both tests I have noted above for decisions, but it is stated as an either OR situation. If one test is worse than the other how do they rate? There was a prior case in law that said the Raters prefer to use the FEV1 test as that one is more accurate in determining disability. Are you familiar with that case? Thanks a lot Jim for your help on this.
Jim's Reply:
I can answer everything simply: VA is in error.
You will have to formally appeal every detail. VA seems to make a sport of lowballing agent orange cancer victims in their recovery. "Lose a lobe, no big deal!" I can't count how many times I've seen this.
If you don't formally and timely appeal, nothing at all can or will happen. I'd suggest that you provide a brief statement outlining just what you told me and then be ready to repeat it verbatim at your next C & P exam. Soon after your appeal is recorded you'll be scheduled for a new C & P. If they schedule you with the same examiner, ask for another.
Exactly, precisely how you should be rated will be found in The Schedule. https://www.benefits.va.gov/WARMS/bookc.asp The Schedule takes a bit of studying to understand but soon enough you'll see just what your rating should be. While you don't want to be a know-it-all, at your new C & P exam you can opine on how it should be done.
You should also dive deep into The Clinicians Guide so you can learn what a C & P exam should produce for you. This guide is still the gold standard for the C & P exam.
I understand that this isn't great news and that there's a lot of fuss for you to deal with in the future. It's unfortunate that this is just typical of some of the sloppy work that VBA puts out these days and how poorly agent orange cancer victims are thought of.
I'll emphasize that unless and until you file an appeal, nothing can happen. You have to kick-start the process with a NOD and appeal and you're the only one who can do that.
I'll leave you with a tip. You've lost a big piece of your lung. Many veterans find that will leave them short of breath even as they rest. Their sleep is upset because of shortness of breath.
The veteran who is short of breath while resting may benefit from a home oxygen supply. A CPAP/BIPAP machine can also be prescribed to treat your service connected post cancer treatment syndromes. VA doctors are usually very happy to set you up with the latest oxygen therapy technology to help you rest at night and to help you maintain the usual activities of daily living (ADLs) we all want to enjoy.
Service connected home oxygen therapy because you're SOB will bring with it a 100% rating. Talk with your doctor, get some O2, feel better, file the claim. Good luck sir.