VA has spoken

[Steve C]

This past week I finally received a decision letter. While the VA does acknowledge that I lost a kidney in service due to a botched surgery, I was given a zero percent rating. I am enraged and dumbfounded. SERIOUSLY? Had this been a civilian surgical mistake, the settlement from a lawsuit would be huge for the loss of an organ due to a surgical "mistake". I know too well because I worked in surgery 17 years. I intend to appeal. Which option for appeal? I don't know yet. This is the most absurd thing that I have ever seen. I am still trying to collect my head enough to begin the appeals inquiry and proceed with whichever method might be best for me. My claim was rock solid and well built by myself, my doctors and a VSO who is also a retired medical professional. I know most get denied but who has ever dealt with this kind of unfairness?

[Dustoff1970]

This is the normal routine unfortunately for VARO raters to deny a claim that has very strong supporting evidence and then on appeal the BVA judges grant/approve the vets claim based upon the very same favorable supporting evidence.  This happened to me with a OSA Sleep Apnea due to PTSD claim I filed in 2017 and the BVA judge granted in Dec 2021.

In two of my approved BVA appeals the judge said in one that the CP examiner and rater's opinion was defective and in the second appeal the judge said their negative opinions against me was inadequate.   It is all about deny, delay till you die and a deliberate strategy.  This chit has been going on for decades. Over a 30-year time period I have read hundreds of these appeal decisions with same results as mine. Former VSO and VA raters who say otherwise are being deceptive.

Just like me and thousands of others you will probably have to appeal.  If possible, find yet even more supporting evidence such as another doctor's opinions to support your claim and/or appeal.   Dr. David Anaise of Tuscon, AZ has been of great benefit to me in two appeals filed in 2017.  Google search will reveal his website in Tuscon.

An experienced and motivated (????) VSO at a VARO regional office may be of further assistance to you. Good luck

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

[broncovet]

To appeal, my advice is to appeal directly to the Board of Veterans appeals.  Was this an 1151 claim?  In your appeal, you can dispute the percentage (0 percent) which you can argue is insufficient considering your body was mangled/worsened and your health was worsened by the kidney loss.  Are you more vulnerable to infections?  Document that, with a docs opinion, if that apples.  

Do keep in mind, once we are service connected, we are rated based on "symptoms".  

So, tell your doctor your symptoms.  For example (example only, I dont know if this applies to you or not):

A.  Possible symptoms (if applicable)

    Scars.

   FEAR of getting other necessary surguries.

   Pain from Scars.  

   List the things you avoid because you have only one kidney:  Perhaps, you can not qualify to be an astronaut, or other careers where optimum physical health is required.  Do your research.  

    Fear the other kidney will also fail, and you will have to do dialaysis.  

    Unable to donate a kidney to a loved one who needs it.  

    Fear that you are "not whole"..missing your kidney, and, if/how  that adversely affects your job or your relationships.  

    Research if having only one kidney reduces your life span.  (I dont know if it does, but it surely is not as good as having both kidneys).  

    Do NOT use my examples, but rather use your own symptoms from your own life.  

You will need your symptoms, if you have any, documented.  

    You need to demonstrate "how you were damaged" for compensation.  Dont assume people will just say, "Oh, he lost a kidney, so he deserves damages".  VA does not want to connect the dots, you need to do that for them by documenting "how you were damaged" by this loss of your kidney.  

     If you lost an arm or a leg due to botched surgury, there are regulations which cover loss of limb.  But isnt it also important when you lose an organ?  

     If you dont get the rating you feel you deserve at the BVA, consider an attorney to represent you at cavc.  It should be paid by EAJA.  

    

Edited August 1, 2022 by broncovet

[Vync]

 

 

[MilvetHD]

If not for the seriousness of your injury this would be laughable, zero percent adds insult to injury. When you are able to clear your head and gather your thoughts I suggest going directly to BVA. 

[Vync]

@Steve CDid the decision letter mention 38 CFR § 4.115b - Ratings of the genitourinary system? Per 7500 Kidney, removal of one, the minimum evaluation is 30%