38 C.F.R. § 4.112 (2009)

Manager
Registered: 11/22/08
Posts: 654

01/25/11

When a Vet finally get service connected for Hep, he/she often ends up going back to the RO for a rating on it. This is based on one’s medical records, or, if they are lacking, a new exam for C&P to be up to date. If you won at the BVA level, you are usually 2 years sicker than you were when you appealed and 3 years down the road from your initial filing.

When you attend this little shindig, you would be well advised to prepare for it. VA will note what you are wearing, whether it is appropriate, your general hygiene, and your general appearance (haggard vs. well tanned and red rosy cheeks). They will annotate your sensory perception, any depression, and your general demeanor.

Some of us men go in and tell the examiner everything is fine, that they feel a little “off” but can mostly handle it. This is the macho response and is absolute anathema to the claim. You will read all about it in the claims rating document. “Patient denies fatigue, nausea, vomiting, general malaise and weight loss. Claimant’s description of his health was “Good to go”. Based on the above, he is hereby rated at 0% noncompensible due to no major ailments.”

While we have heard of some claimants using black eye shadow to enunciate dark circles under their eyes, FD&C #2 Yellow food coloring in their eyes and wearing loose-fitting clothing and complaining of weight loss, be aware of the following.

38 C.F.R. § 4.112 (2009) deals with the weight loss mentioned in DC 7354. Specifically, the mention of minor weight loss versus substantial weight loss. These are important phrases. VA, either by requisitioning your private medrecs, or by researching your VA generated medrecs, will be able to ascertain what you normally weigh, what you weighed 2 years ago and whether you are gaining or losing weight. Your story, or version of events, has to correspond with VA’s unless you have been adjudged non compos mentis.

Additionally, when the Vet requests the leap from 60% to 100% for hep c, he/she often doesn’t understand the requirements. Simply stating subjectively that you have “near constant” debilitating symptoms does not rise to the level of evidence. A doctor must make this pronouncement before it has any gravamen. Note #2 at the very bottom of all the ratings info on DC7354 also clarifies the definition of “incapacitating episode” to mean:

Note (2): For purposes of evaluating conditions under diagnostic code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.

I cannot tell you how many Vets have beached their claim on this requirement. Notice if you will the word “and” between bed rest and treatment by a physician. VA has taken that one step further in pursuit of semantic excellence. Now, Vets will discover to their chagrin that if their doctor hasn’t specifically prescribed bed rest, they don’t qualify for the highest rate. The average disinterested observer might misinterpret the “severe enough to require bed rest” phrase to mean it’s a subjective choice determined by the patient. Au contraire, ma cher. Nothing could be farther from the VA truth. Lacking that one innocuous phrase by your doctor will render all your time and hard work meaningless. Don’t let that happen. Make sure your doctor includes the exact phraseology employed in the Diagnostic Code. To wit:

With serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection:
Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)	100

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AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94

	01/25/11	#2

Nod …. Thank you for another very informative piece of information. I shall share my experience with my “everything is fine, he is my hero” Veteran husband. It’s difficult for anyone who is battling HepC, and especially a man, to admit to anyone, not even to himself that he is tired. Tired enough to find himself (or herself – we are women, hear us roar) taking naps throughout the day just to make it from sunrise to sunset. THIS is VERY important to tell your doctor about, not just for treatment purposes but for your claim also. If it’s not in written words, it didn’t happen. It took a very “long while” for my Veteran husband to admit that “yeah, I’m a heck of a lot more tired than I used to be, yes, I do take more naps and much more frequently than I ever did before” — Prior to his dx and then 3 rounds of treatment (for that alone he is my HERO, without a doubt) he was Mr. Happy aka: Mr. Energy aka: Mr. Positive aka: Mr. Live Life to the Fullest … not to say he isn’t most of those some of the time now, he is …. but…….he is no where near the same guy who used to jump out of bed each morning with the zest of a 13 year old on summer vacation who could not wait to ride his bike and play baseball with his buddies until dark. It wasn’t until he finally told his doctor “yeah, I feel beat up most of the time, no where near the energy I once had, fatigue is constant but I try to fight through it” – basically, he had to come to grips and the reality of okay, just because I’m admitting these symptoms, it does not mean in any way shape or form that I’m admitting defeat or that I’m weak. Heck, he made it this far — think about it — 116 weeks of IFN and Ribavarin — he isn’t giving up … he isn’t giving in … he finally just admitted he was feeling weak, tired, fatigued, etc. His doctor said to him “Sir, take those naps, you need them, don’t feel guilty, not one tiny ounce of guilt. You are not giving up, you are not giving in, you are becoming active in your treatment.” His doctor needed to know this — and he was willing to write it down in his chart and wrote him a statement for the VA — take those naps, you need them, take as many as you you need and I’m ordering you to do so. It’s the way it is, accept it and move on. He was recently granted 100% schedular for HepC after an 8 year back and forth with the VARO and BVA…..and, ultimate acceptance for the life he has now, to which he will enjoy and live every minute to the best of his ability without sacrificing his ego or his health. I can’t stress how important it is to any Veteran to get this information into their medrecs. Period. You can’t get to 100% without being this ill, and you for certain will never get to 100% if you don’t have it in writing — Prescribed Bed Rest. AzeeJensMom