Here’s something interesting. I found it in a decision that has nothing to do with hep. What it does include is an interesting notation. This is a single judge decision so there is no precedent attached but none is needed. VA’s practice of denying a 100% rating because we lack a prescription specifically entailing bed rest has long been legendary. Guess what? VA has been doing it wrong all these years.
In this case, the Board failed to provide an adequate statement of reasons or bases regarding its definition of “incapacitating exacerbations,” frustrating judicial review. In attempting to define “incapacitating exacerbations” under DC 5002, the Board first noted that “incapacitating episode” is defined in another part of the rating schedule for the musculoskeletal system under the code for intervertebral disc syndrome. That definition states that an incapacitating episode is “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5243, Note (1). The Board then provides a “see also” citation to DCs 7345 (chronic liver disease) and 7354 (hepatitis C), both of which define “incapacitating episode” as “a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.” 38 C.F.R. § 4.114, DCs 7345 Note (2), 7354 Note (2). Wisniewski v. Shinseki (2011)
A Court footnote attached to this says that:
1 The Court notes that while these two definitions are similar, DC 5243 expressly requires bed rest prescribed by a physician while DCs 7345 and 7354 require bed rest, but do not expressly require a prescription for such by a physician.
I do not know how many times I have counseled Vets to be sure that little blurb was included in the ” near-constant, incapacitating episodes” letter to attain 100%. And here I find VA has been lying all this time. Go figure.
Here’s the damning evidence:
It will provide endless months of entertainment at the RO when you dispute it with them, but they cannot argue the interpretation of their own regulations.