On 8/24/2016, VARO made a decision on my Chronic kidney disease claim. They granted me a 60% rating, on CKD stage 3, and Definite decrease in kidney function. I was initially at stage 4 CKD and sick, so they put me on several medications to get my numbers to come down, well after about 45 days it drop from stage 4 failure to moderate stage 3. So I initially filed my claim back in 2004, as all of this was occurring. So I just recently filed a NOD, which states I should have been granted 80%, for stage 4 CKD.
So the C&P Examiner in 2015, never mentioned that I was ever at stage 4. So they only rated me on my now medical status, which is stage 3. So I got an IMO from Dr. Anaise, and he states: A BVA decision in a similar case dated October 26, 2012 states (David Jones, Appellant v. Eric K. Shinseki, Docket No. 11-2704):
The court holds that the Board committed legal error by considering the effects of medication on the appellant's IBS when those effects were not explicitly contemplated by the rating criteria...As this Court has made clear, the Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law. "Massey v. Brown, 7 Vet. App. 204, 208 (1994); see also Drosky v. Brown, 10 Vet. App. 251, 255 (1997) (finding legal error where the Board, "in essence, impermissibly rewrote" the regulation by considering factors wholly outside the rating criteria); Pemorio v. Derwinski, 2 Vet. App. 625, 628 (1992) ("In using a standard that exceeded that found in the regulation, the Board committed legal error").
Conclusion
After reviewing all of the veteran's medical and military records, it is my expert medical opinion that the veteran's service-connected renal dysfunction warrants an 80% rating. It is abundantly clear from the record that the veteran was diagnosed with stage IV renal failure with a creatinine of 4.5. It is true that the creatinine has improved once medication allowed for some recovery of kidney function. Yet, the rating specifically states that the veteran is entitle to 80% disability when his creatinine rises to 4.5, with no disclaimer to that statement.
A higher evaluation of 80% based on renal function is not warrant unless there is:
* Persistent edema and albuminuria; or, * Creatinine 4 to 8mg%; or, * BUN 40 to 80mg;
Question
Palma114
On 8/24/2016, VARO made a decision on my Chronic kidney disease claim. They granted me a 60% rating, on CKD stage 3, and Definite decrease in kidney function. I was initially at stage 4 CKD and sick, so they put me on several medications to get my numbers to come down, well after about 45 days it drop from stage 4 failure to moderate stage 3. So I initially filed my claim back in 2004, as all of this was occurring. So I just recently filed a NOD, which states I should have been granted 80%, for stage 4 CKD.
So the C&P Examiner in 2015, never mentioned that I was ever at stage 4. So they only rated me on my now medical status, which is stage 3. So I got an IMO from Dr. Anaise, and he states: A BVA decision in a similar case dated October 26, 2012 states (David Jones, Appellant v. Eric K. Shinseki, Docket No. 11-2704):
The court holds that the Board committed legal error by considering the effects of medication on the appellant's IBS when those effects were not explicitly contemplated by the rating criteria...As this Court has made clear, the Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law. "Massey v. Brown, 7 Vet. App. 204, 208 (1994); see also Drosky v. Brown, 10 Vet. App. 251, 255 (1997) (finding legal error where the Board, "in essence, impermissibly rewrote" the regulation by considering factors wholly outside the rating criteria); Pemorio v. Derwinski, 2 Vet. App. 625, 628 (1992) ("In using a standard that exceeded that found in the regulation, the Board committed legal error").
Conclusion
After reviewing all of the veteran's medical and military records, it is my expert medical opinion that the veteran's service-connected renal dysfunction warrants an 80% rating. It is abundantly clear from the record that the veteran was diagnosed with stage IV renal failure with a creatinine of 4.5. It is true that the creatinine has improved once medication allowed for some recovery of kidney function. Yet, the rating specifically states that the veteran is entitle to 80% disability when his creatinine rises to 4.5, with no disclaimer to that statement.
A higher evaluation of 80% based on renal function is not warrant unless there is:
* Persistent edema and albuminuria; or, * Creatinine 4 to 8mg%; or, * BUN 40 to 80mg;
Edited by Palma114Link to comment
Top Posters For This Question
8
5
4
3
Popular Days
Jan 8
9
Jan 9
4
Jul 21
3
Jun 22
2
Top Posters For This Question
Oceanbound 8 posts
Palma114 5 posts
jfrei 4 posts
john999 3 posts
Popular Days
Jan 8 2017
9 posts
Jan 9 2017
4 posts
Jul 21 2017
3 posts
Jun 22 2020
2 posts
Popular Posts
Palma114
On 8/24/2016, VARO made a decision on my Chronic kidney disease claim. They granted me a 60% rating, on CKD stage 3, and Definite decrease in kidney function. I was initially at stage 4 CKD and sick,
Nick2021
Received a decision on my sleep apnea as secondary to allergic rhinitis...approved, using Dr. Anaise's nexus letter.
Berta
That is Great News Nick!
33 answers to this question
Recommended Posts