From the cigarette

RO in N.C.

This decision caught my eye for a number of reasons. When I saw  the two different Diagnostic Codes employed and the cutoff date of July 2001, I knew this Vet had been at it for quite some time. This BVA decision came down in May 2011 but involves much more. The actual win occurred in 2006 and the effective date was his filing on January 26th, 2001. Way to go, vA. It only took eleven short years to put paid to this one. That assumes Mr. W-S doesn’t appeal it up to the Court. So, what happened?

Winston (no relation to Churchill) filed in 01 and fought the good fight. In just a few short years as vA measures them, he won in September 2006. Because his decision straddled two different interpretations of vA’s diagnostic codes, he was given a bifurcated decision. Everything after July 1, 2001 fell into the brand new category of HCV under DC 7354. Everything prior to that was under the old code for hepatitis (DC7345). The  codes are similar but not precisely the same. Hence the wording for 10% under 7345 differs from 10% for 7354. VA is very anal about these things. As an aside, the law says the Vet is entitled to the best interpretation of the rating under whichever code is more beneficial to him.

Additionally, our Vet is contesting this as a Fenderson staged rating. He actually thought he had a 20% rating which the VLJ is careful to discredit. He has an extensive medical record on this which threw me for a minute until I spotted the fact that he is a quadruple amputee. He probably gets regular medical attention for that alone.

What I see is a contrived situation that carefully uses what W.-S. didn’t say more than what he did say. vA has a propensity to do two things. When you see one of their personal care physicians (PCPs), they often throw their hands up if you broach the subject of HCV. The feeling is that this is handled by your assigned Hepatologist or Gastroenterologist. They have no interest in discussing it. So, for the medical record touted here in the appeal to have any pertinence, it would have to be in the context of it being before said specialist. If it were before a PCP, Winston wouldn’t be discussing  right upper quadrant pain, malaise, nausea, emesis, anorexia, weight loss and other various symptoms. He might be discussing the flu or abrasions from his motorized wheelchair.

I will give you all some valuable information I have observed over the last four years on this. If you do not mention something specifically to a doctor, they don’t write it down. They’re lazy. That’s why I always type up a problems list and hand it to them when I go in. This serves a dual purpose. They have to deal with it and it makes sure you get it all into the record. I’ve discovered later that I forgot to mention something and by then (two weeks) it’s too late to add it in. As you can see here, the VLJ gloms onto one thing- the fact that our erstwhile Vet did not mention these ailments. This is the age old vA ploy that no evidence of something is dispositive of it ever having happened.

Consider these:

There were no current complaints of abdominal pain or distention.

A March 2005 VA treatment note reflects that the Veteran was doing well with no episodes of abdominal pain, nausea, or vomiting, and no weight loss. Similarly, he reported no complaints in a June 2005 treatment report.

In April 2006, the Veteran denied abdominal pain, nausea, vomiting, diarrhea, and constipation.

A June 2006 VA treatment note reflects that the Veteran has been undergoing liver transplant evaluation. He denied abdominal pain, nausea, vomiting, diarrhea, and constipation.

A June 2007 VA treatment note reflects that the Veteran was doing well with no significant fatigue, abdominal pain, or increase in abdominal girth.

A November 2007 VA treatment note reflects no specific symptoms, the Veteran denying abdominal pain, nausea, vomiting, diarrhea, constipation, and weight loss.

A January 2009 VA treatment note reflects complaints of intermittent abdominal discomfort. There was no distention, jaundice, nausea, or vomiting

A July 2009 VA treatment note reflects that the Veteran was without problems of liver-related complaints. Specifically, he denied fatigue, nausea, vomiting, and abdominal pain.

Okay. You get the picture. The man is a glowing picture of health and suffers none of the debilitating symptoms associated with this illness. To say he denied them is disingenuous. If someone doesn’t mention symptoms, that cannot be construed as denying them. vA often uses this method to construct a scenario whereby you are good to go. What might be more à propos would be to couch it in terms such as “When queried as to symptoms such as malaise and nausea, the Veteran denied them”.

vA also has a regulation that says if you suffer some of the symptoms some of the time and they more closely approximate the higher rating, it is permissible to grant that rating percentage.

 38 CFR § 4.7

Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

With that in mind, go back and consider these:

March 2004…The Veteran reported more diarrhea with this course of treatment, as well as GERD (gastroesophageal reflux disease), nausea, and sinus congestion.

 November 2004… Veteran testified that he had GI problems every two weeks and that he was tired all the time.

A September 2005 VA examination report reflects a history of active hepatitis C that had turned into cirrhosis, and which appeared to be fairly stable. The Veteran reported some nausea and occasional vomiting. 

A June 2006 VA social worker transplant assessment reflects that the hepatitis C treatment affected the Veteran’s activity level.

A December 2006 VA treatment note reflects complaints of nausea related to some foods

A May 2007 endoscopy consult noted burning in the esophagus area, with a provisional diagnosis of gastroesophageal reflux disease (GERD)

Well, GERD isn’t HCV so we have to toss that one out. But wait. Anything of or having to do with the intestinal tract is implicated where HCV is concerned. If it is not specifically ruled out, it is part and parcel of the HCV process.

A March 2008 VA treatment note reflects that the Veteran was doing well considering his overall health, but he was experiencing intermittent abdominal pain and occasional spells of dysphagia

A June 2008 VA treatment note reflects that the Veteran was doing well and that the abdominal pain had improved somewhat with medication.

This one is important because the VLJ implies he isn’t using any medications to control his symptoms.

An October 2008 VA emergency department note reflects that the Veteran remained positive for hepatitis C.

What, pray tell, was he doing in the Emergency room? There is no answer to that.

A January 2009 VA treatment note reflects complaints of intermittent abdominal discomfort.

A May 2009 VA short stay unit note reflects complaints of nausea and vomiting but the note indicates that they were due to an ultrasound guided liver biopsy.

I’ve had two biopsies and never puked. This is pure hogwash and speculative conjecture. If you do not address these things you can see how they are used against you. Just as an offhand remark about drugs can spiral into an accusation of polysubstance abuse, so too can an uncontested statement about the cause of a malady.

If you try to have a meaningful medical relationship with vA as your primary care provider, you must realize that they view you as a potential lawsuit/claim looking for a place to happen. Much like the proverbial “slip and fall” Safeway claimant looking for a cash infusion, vA marginalizes anything you complain of. Failure to complain is listed under a default setting  as in “claimant denies.”  With this in mind, when you visit, you must either be specific in your description of your ailments or provide a list they cannot blow off. When you give them the list they can hardly say you denied it.

I’m sure when Winston read this he was appalled to find out just how healthy he wasn’t. The record shows he’s preparing for a transplant. This is not done for those of us who are healthy, active, vibrant and full of the zest for life. I do know some of us men are guilty of braggadocio and would hate to evince any weaknesses. I used to be guilty of that until I read some of the above in my records. I have become proactive in this respect now. I retrieve my records from ROI as soon as possible and examine them closely for those “patient denies”.

Let this be an instructional how to in how not to do it. Winston didn’t show up for all these appointments because he was hitting on all eight cylinders. The mere fact that they’re preparing to R&R his liver is proof positive that he’s not going to participate in the Special Olympics for differently-abled paraplegics. Swimming three times a week does not imply you’re the picture of health. It most likely is prescribed therapy for his paraplegia.

Winston’s 11 year Odyssey.