We counsel Vets to avoid diarrhea of the mouth around medical professionals or C&P doctors.. We do not counsel them to make sure they have the requisite illnesses and incapacitating symptoms of the proper duration. Perhaps we should. From that large hole in the ground west of Philidelphia…

The Vet in the link below, represented by an inattentive SO from the esteemed DAV, requisitioned the VA for an increased rating in excess of 20% .  His argument exposed a very large obstacle at the hearing. In order to qualify for 40%, the next rating above 20%, one’s incapacitating episodes in the prior 12 months must equal or exceed 30 days:

A 40 percent rating is warranted if hepatitis C is manifested by daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly (enlarged liver), or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  

     What, then, was the SO doing besides cleaning his fingernails when this choice sentence erupted out of the Vet’s piehole?

During a May 2009 DRO hearing, the Veteran testified that he had missed approximately 27 days of work in the past year due to his hepatitis C.  He experienced fatigue and vomiting and there were some days in which his symptoms were so severe that he was unable to leave the house.

    Hello? McFly? Is anyone on his team aware of the concept of lieing under oath? Incapacitating episodes, by their very nature, are just that. Leaving the house for a trip anywhere other than a  hospital under those circumstances is a not so subtle admission that the episodes are not very debilitating.

An “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  See Note 2 following 38 C.F.R. § 4.114.

     His wife, a registered nurse, apparently in an effort to ameliorate the Vet’s incongruous testimony, added this in a sworn deposition:

 In a May 2009 statement, the Veteran’s wife, who noted that she is a registered nurse, indicated that his fatigue and pain prevented him from engaging in physical activities.  The Veteran  had been prescribed large amounts of narcotics to alleviate his pain.  This disability has caused him to miss work for more than 30 days over the past year due to such reoccurring symptoms as pain, nausea, vomiting and fatigue.

 I just can’t resist. Having a mother who taught English is why. Our esteemed, well educated medical professional has just inadvertently testified that large amounts of narcotics to alleviate his pain have caused the Vet to miss work due to reoccurring symptoms such as pain, nausea, vomiting and fatigue. Rumor has it that mass quantities of narcotics will do just that to you. 

Some more salient facts pertinent to this decision:

A 40 percent rating is warranted with minor weight loss

An April 2005 private treatment summary indicated that the Veteran weighed 223 pounds.  He was noted to weigh 210 pounds in a January 2006 private treatment note.  His average baseline weight was therefore 216.5 pounds.

Veteran was noted to weigh 226 pounds in a September 2008

March 2009 the Veteran denied weight loss.

September 2009 VA examination report weight was stable.

The Veteran was noted to weigh 230 pounds in a January 2010 private treatment note and224 pounds in a second January 2010 private treatment note.

     Just for the edification of the reader and the yawning SO, a minor weight loss, as defined by the VA, is 10% of the baseline weight. This poor Vet experienced a net weight gain during the pendancy of this appeal. This, in conjunction with the disparity in the actual number of days being incapacitated, compromised this gentleman’s competency to testify truthfully in his own defense. A cursory inventory of the evidence prior to entering the courtroom would have revealed a major defect. This admonition is only congruent if the SO is privvy to the governing regulations concerning DC 7354. Absent this knowledge, the Vet would have been just as well served had he been accompanied by Mojo (Homer Simpson’s beer-fetching monkey) to his DRO review hearing. 

     There but for the grace of God go I(again). I had the great pleasure of Mojo’s presence not once, but twice at appeal. Somebody find this guy and give him a lifetime supply of Fukitol. Nevermind. On second thought, it appears he already has a prescription.

     I won’t spoil the anticlimactic ending for the reader.

http://www4.va.gov/vetapp10/files4/1030364.txt

(denied)