Going to file NOD, DAV rep disagreed with my research findings

[Palma114]

I went to see my DAV rep this morning, to let her know that I was going to file a NOD on my kidney disease decision that VARO awarded me in Aug 2016, and I was telling her that I believed that the VARO erred in their decision in rating me on kidney disease stage 3, because when I initially got really sick with kidney disease, I was at stage 4 and of course

the VAMC put me on several medications to stop the kidney disease from progressing higher, so after the VAMC aggressive approach, my kidney disease dropped to stage 3 within about 35 days. This occurred in 2006, and I filed my claim in 2006. So I showed the DAV rep 4 pages from VAMC where they initially diagnosed my kidney disease stage 4. The DAV

rep told me the VARO are not going to consider when you had kidney disease stage 4, because you've had stage 3 for about 10 yrs. I told her its not my fault that the VARO dragged this claim out for so many years. So I ask the DAV rep, how do you think I went down from stage 4 to stage 3, she said because of the medications that they gave you. I said doesn't

that fall under the Ameliorative effects of medication (CAVC Jones vs Shinseki, 26 Vet. App. 56, 63 2012) the board may not deny entitlement to a higher rating on the basis of relief

provided by medication when those effects are not specifically contemplated by rating criteria. She seem to not know about this court ruling, then she says they're still not going to do it. But as I've researched I did not find anything, that kidney disease stages, have to be for a certain amount of time.

[Vync]

Your approach might work.

The spirit of Jones vs. Shinseki is the appropriate rating despite the positive impact of medication This tends to be a factor in a number of ratings, such as:

Hypertension
- Take meds and BP goes down

Migraines
- Take meds and frequency/intensity goes down

MH
- Take meds and ability to function professionally/socially (hopefully) increases

 

It sounds like the DAV rep is trying to tell you that if you take medication and improve, then you deserve a lower rating. If that was the case, then the VA would be truly be a pill farm and constantly trying to reduce ratings every chance they get. Jones vs. Shinseki appears to put the brakes on that.

Print out this BVA ruling and show it to your DAV rep, preferably in person to see her reaction http://www.va.gov/vetapp15/Files1/1503433.txt

Quote

So resolving all reasonable doubt in the Veteran's favor, the Board finds that she has met the criteria for a higher 30 percent rating for her tension headaches since August 2, 2010.  The evidence indicates she has prostrating headaches occurring approximately 4 or more times a month, if accepting that she has at least one a week.  The evidence of record also indicates they can last anywhere from four to 12 hours.  While the September 2014 VA examiner acknowledged that the Veteran's headaches had improved due to using the new migraine therapy, Maxalt, in Jones v. Shinseki, 26 Vet. App. at 56, 63 (2012), the Veterans Court (CAVC) held that, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria.  In other words, if not for the new migraine therapy that has helped to reduce the frequency and intensity of the Veteran's headaches, she more than likely would still experience weekly headaches that are prostrating in nature.  Thus, the requirements have been met for a higher 30 percent rating for her tension headaches since August 2, 2010.

 

I personally have not tried using Jones vs. Shinseki, but I hope this helps!

 

 

[broncovet]

I agree with you.  This is like saying, "Gee, Mr. Veteran, I dont know what you are complaining about "loss of use" of your legs.  We got you 2 wooden legs and a wheel chair, so you seem to be getting around just fine with the wooden ones, so there is no "loss of use".  

Its horse puckey, plain and simple.  

When Im rated for hearing loss, I'm rated WITHOUT THE USE of hearing aids, not WITH the hearing aids for heavens sake.  

[Palma114]

5 hours ago, Vync said:

Your approach might work.

The spirit of Jones vs. Shinseki is the appropriate rating despite the positive impact of medication This tends to be a factor in a number of ratings, such as:

Hypertension
- Take meds and BP goes down

Migraines
- Take meds and frequency/intensity goes down

MH
- Take meds and ability to function professionally/socially (hopefully) increases

 

It sounds like the DAV rep is trying to tell you that if you take medication and improve, then you deserve a lower rating. If that was the case, then the VA would be truly be a pill farm and constantly trying to reduce ratings every chance they get. Jones vs. Shinseki appears to put the brakes on that.

Print out this BVA ruling and show it to your DAV rep, preferably in person to see her reaction http://www.va.gov/vetapp15/Files1/1503433.txt

 

I personally have not tried using Jones vs. Shinseki, but I hope this helps!

 

 

Thanks Vync, I am going to print it out and show it to her.

[Palma114]

I agree broncovet. But it is just awful, when a Veteran has to try and convince the vso, to do the right thing, when you are already battling with the varo, and then trying to convince the vso to do her job. In which I'm going to file, the NOD any way!

[Buck52]

When VSO makes Mistakes like this  its time to fire them & either work your claim yourself or find a decent and honest hard working VSO that puts your well being first.

jmo

........Buck

[Berta]

Palma, you said:

"This occurred in 2006, and I filed my claim in 2006."

Did any decision reveal Stage 4 on the rating sheet or within the decision rhetoric from that claim?

Did the established medical evidence VA had at that time warrant a higher rating for the kidney disease?

( it seems it did based on your post) Was Stage 4 kidney paid at a higher amount then 3 at that time per VA's Schedule of Ratings?

Was the recent decision an outcome of continuous prosecution of the 2006 claim? ( 10 years???? possible and disgraceful)

Or due to a re-open at some point?

A vet rep told me not to file a NOD on an award letter I got in 1998.

It bothered me for years as I realized  he was wrong and I had to file CUE, in 2003, since I had not Nodded the 1998 decision in time.

There were 4 CUEs in that decision. All awarded after a big battle for 3 of them and a brief battle for the last one,fgiled under 1151, decision to deny last year, filed CUE on that, awarded a few weeks later.

You sure did some great Homework---Jones V Shinseki---yum yum--- have you checked for any VA OGC Pres Ops and any BVA decisions that might have specifically addressed the kidney disease or enhanced Jones V Shinseki?

I agree that we often do much better ourselves than having reps or VS0s.