Here’s a horror story I’m sure some of you Veterans have encountered by now. Imagine filing for SC for hep and cirrhosis and winning. Your med recs support it and you are most definitely entitled to it. One little problem. You are still healthy enough to soldier on and the cirrhosis hasn’t progressed to a decompensated liver yet with all the attendant side effects so common to the disease. VA rates you at 30% for the cirrhosis (D.C. 7312) and 20% for the Hep (D.C. 7354). So far so good? Not quite. Let’s just say for argument’s purpose that you are slowly going down hill and your health is starting to become an issue. It happens slowly as we all know but it happens. When it does, you usually motor on down to your AMLEG or VFW post and tell the VSO what’s up and they put in a claim for an increase in your rating.

Unfortunately, due to the way 7354 is set up, you are at a strategic disadvantage for rating purposes if your hep is complicated by the cirrhosis factor. At the bottom of the 7354 rating are several notes that basically state you cannot pyramid your claim. That term means you cannot use the rating criteria for cirrhosis issues to up your rating percentage for hep and vice versa.  If you are SC for both then you will be rated on a percentage basis for each individually with extra caution on VA’s part not to duplicate the symptoms of one with the other. It looks good and reasonable until you get to the percentage of disability. VA will do what they did to this Vet with a 20/30 % for hep /cirrhosis even though his true disability picture is higher.  This happens so frequently now that it is really starting to interfere with Vet’s rights to a compensation % commensurate with their true illness.

We at AskNod don’t advocate how Vets should present their claims. We do try to illuminate problem areas you may encounter and this is a big one. We suggest you focus on the real culprit first which is Hepatitis. Get your SC and a rating for this. If your disability picture is extreme, concentrate on a 100% disability rating. If it hasn’t risen to that level yet, then settle for the 60% and never forget that TDIU is now on the table automatically since the Rice v. Shinseki (2009) ruling at the CAVC.  The high Court in AB v. Brown (1995) found that a Vet is automatically seeking the highest compensation he can get when he applies for SC. This just confirmed what we all knew for all these years. Why would a Vet put in a claim for hep and request a 10% rating if he were entitled to a 20 or 40% one?  He wouldn’t and AB v. Brown affirmed that. The Clemons case added the caveat that if TDIU was appropriate then if should be considered automatically without the Vet having to beg for it separately.

Once you have attained the absolute highest rating you are entitled to for the Hep, the matter of cirrhosis should be considered. Trust me, assuming you never attained SVR via Interferon/Ribavirin therapy, Hepatocellular Carcinoma (HCC) is definitely in your future. Your liver will almost always degenerate slowly and eventually become decompensated. When this happens you have reached Stage 4 cirrhosis. Either you get a transplant or you die eventually. That might sound brutal but it is a medical fact. There usually is a period of stability from having a compensated (or functioning) liver and a decompensated (or non-functional) one once you’ve been diagnosed as cirrhotic.

This is the time in our minds for you to file for 7312. Even if you are rated 60% for Hep, you’d need a 90 % rating for cirrhosis to attain a 100% scheduler rating. Let’s imagine they gave you 30% for cirrhosis.  That would simply advance your rating to 70%. A 50% rating would only get you to 80%. Granted, you would probably be granted a TDIU, but you must realize you have to report annually for an exam to ascertain that you are still eligible for it. No, the 100% scheduler rating for the hep is still the advisable course if your symptoms support it.  Or, if you are late to this game and get SC when you have already hit the wall with cirrhosis, a 100% rating for that would be a good choice, too. We will tell you that you have to be pretty sick to get 100% total cirrhosis rating though.

With all this new knowledge, witness the poor Vet below defending himself pro se who has just stumbled across this dilemma. Accordingly, meet the poor Vet from San Juan, Puerto Rico who is preparing to be introduced to VA’s “non-adversarial judicial system” where the benefit of the doubt always accrues to the Vet…

http://www.va.gov/vetapp10/Files1/1002416.txt

The problem is a travesty of justice.-a catch 22. It hinges on §4.16, the pyramiding clause and therein lies the problem. Much like a black hole, the claimant cannot escape once he enters the event horizon (filing for both). Please, if you even reach this point, do not listen to your wife, sig. other or SO. We’ve been there with our own member. You will spend an eternity in D.C. and it will be aeons before you see $.