38 CFR §4.14–The Dreaded Pyramiding Regulation


I had a phone call from a member who lives near us last night (Peter aka Menalteed). He was having trouble navigating this new site looking for an old post that discusses the inequities of DC 7354  (HCV) and DC 7312 (Cirrhosis).  For our readers, it was located on page 16 of the listing of all posts as well as being in the BVA decisions category. I relabeled it with the term “pyramiding quandary” in the title to make it easier to locate. it involved this case:

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

One of our original members from Salt Lick City, RobD, has run up on this rock and had extreme difficulty getting off it. Rob filed for hep C and cirrhosis simultaneously and- wonder of wonders- lost. VA used their voodoo ratings techniques to rationalize this. Hmmm, Navy medic in training at Balboa Hospital (San Diego) working in the hospital laundry. Claimant says he was cut by scalpels left in gowns, poked by needles inadvertently wrapped up in sheets from surgery, etc. VA counters with their Gee, we don’t see any of this in his medrecs. Seems he would report for sick call and get treatment for an itsy bitsy 26 ga. hole in his palm, right? On appeal, Rob presented a letter from his former wife who testified he came home absolutely blood-spattered and lacerated nightly. This worked quite well as the ex-wife certainly didn’t have a dog in the fight and all the dependents are way over 18 now. The BVA saw it his way and he won-sort of. It was remanded back to SLC for a rating. This is where VA’s perfidy always emerges. They gave him a whopping 10% on the hep and 0 on the cirrhosis. Keep in mind Rob is Stage 4, Grade 2 with a compensated liver on the verge of going decompensated. He’s been out of commission for work for a number of years. VA knows this. They have his Vista Records. Apparently they’re pretty hard core in Salt Lick. He’s been fighting them now for 2 years trying to overcome the incongruous policy of two Diagnostic Codes in conflict with one another.

Begin by  looking at the Hep. C code, 7354.

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

Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, 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 six weeks during the past 12-month period, but not occurring constantly————-60

Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, 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———-40

Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period———20

Intermittent fatigue, malaise, and anorexia, 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 one week, but less than two weeks, during the past 12-month period———10

Everything seems above board until you get to the bottom and notice this little codicil:

Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. (See §4.14 .).

Sequelae (plural of sequelus, sequala, sequelum if you’re into Latin) is VAspeak for symptoms. As we are all educated, we can readily ascertain what we need to qualify for each of the different ratings percentages. The litany of symptoms is relatively the same throughout the DC  and the increase in percentage occurs in conjunction with how debilitating the disease is. This is expressed as to how much time is lost to “debilitating symptoms”. Hence, a loss of 7 days a year (one week) over 12 months  equals 10%; two weeks up to four as 20%; four weeks up to six as 40%; six weeks but not occurring  constantly as 60% and lastly near constant debilitating symptoms as 100%. As an aside, getting that 100% also entails having a shiny letter from you doctor saying your symptoms are, indeed “near constant and debilitating” as well as an Rx for bed rest. I’m serious. He has to actually write it down exactly that way- “I have prescribed bed rest for the patient as needed for fatigue and malaise”. Only in America, Veterans, and only for these Diagnostic Codes (7345 & 7354).

Now, let’s examine DC 7312, the code dealing with cirrhosis. This is ugly. I am getting ready to enter this phase soon and I dread it.

7312  Cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis:

> Generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis)——–100%

> History of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks———70%

> History of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis)———-50%

> Portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss——–30%

> Symptoms such as weakness, anorexia, abdominal pain, and malaise———–10%

Note: For evaluation under diagnostic code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present.

VA, unbeknownst to many Veterans, has the option of changing the code you are rated under if your symptoms more closely approximate the one they want it to unless you’ve had the rating for over 5 years. That’s under §4.20. Also, if you were rated under the pre-2001 hepatitis code (DC 7345 claimed as Infectious hepatitis), VA cannot legally change you over to the new DC 7354 just because you have C instead of B. VA is not allowed to substitute this to your disadvantage. They are required to grant the one most beneficial to you.  Beware  the trick of changing you over for an increase and then calling you in for a new C&P with the idea of reducing you under the new code. As you can see, when you get down to the 30% rating in 7312, there is an overlap of symptoms with those listed in DC 7354- to wit, anorexia, abdominal pain and especially malaise.

Those of us familiar with the system have noticed over the years the propensity of VA to use this against the Veteran when he or she legitimately files for both simultaneously. VSOs do this in the blink of an eye without any aforethought. Gee, Vet has HCV and has already advanced to cirrhosis by proven biopsy. Let’s go for the max. Claim everything and see what sticks. It seems prudent to do so in light of VA’s past peccadilloes. Wrong-and here is why.

Your hep. C is the progenitor of all this. It is the guilty party. You mustn’t lose sight of that. Using the old M-16 spray and pray technique in hopes of hitting something in the treeline didn’t work in Nam and it is equally ineffective here. Aim your fire. Ignore the cirrhosis and focus on the culprit. Get your rating for this established as high as you can using your medical records to substantiate your case. Only then, if you dare, should you tackle the cirrhosis issue. Filing for both will generally result in a 20-40% rating for the hep and a 10% for the cirrhosis so the rater doesn’t run afoul of the §4.14 conundrum. They will ignore evidence of ascites because they cannot cross the cattle guard of the anorexia/ malaise erected at 30%. Should they do so, they’ll  violate the precepts of §4.14 . That’s a bozo no-no in VA examinerland and one they are mindful of. Or perhaps worse. They opt to give you 50% for the cirrhosis and 10% for the hepatitis. Lose-lose predicament.

If you legitimately are incapacitated by HCV to the point of being unable to work, and indeed suffer some of the ailments listed in  DC 7312, you will immediately notice that you will get a lower rating for them than what you might receive (i.e. 60%) under DC 7354.  Face it, you have to be knocking on Death’s door to get 100% for 7312. Why go there?

DC 7354 was enacted in July of 2001 when VA finally recognized the HCV tsunami  washing ashore. We would like to think they were obliging us and making it easier to obtain SC. Since we don’t subscribe to the Tooth Fairy Newsletter and our membership in the Flat Earth Society has lapsed, we have come to doubt the VA’s sincerity in the new DC. One will also note one salient difference between DC 7354 and it’s predecessor, DC 7345 which it was drawn from. DC 7345 encompasses the following:

Chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C) (emphasis mine). DC 7354 is subtly different:

Hepatitis C (or non-A, non-B hepatitis).

With serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection:

The Reader will note the dichotomy instantly. DC 7354 doesn’t specifically exclude cirrhosis in the header. VA has never been accused of being stupid or overlooking an opportunity to abridge our ratings percentages in Part 4. They are either eternal optimists in thinking our symptoms are not nearly as debilitating as they seem, or incorrigibly inclined to be parsimonious. We are therefore left with the assumption by deduction that they contemplated cirrhosis in their writing of the new DC. Knowing that, it behooves Veterans to take full advantage of  DC 7354 and claim all their maladies emanate from HCV-related causes. If a dispute arises, you can always point to the above. Nowhere is it written that you have to go down the more arduous cirrhosis path to attain an inferior rating %.  Quite the contrary, in fact. You got there via the HCV path and that is where your rating ultimately should be decided. The cirrhosis rating is just icing on the cupcake.

About asknod

VA claims blogger
This entry was posted in BvA HCV decisions, General Messages, Introduction-Read these first and tagged , , . Bookmark the permalink.

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