FROM THE CITY

OF RUST VARO

My home town vARO is a piece of work. I am 4/15 on claims there and 2/7 on appeals via D.C. Obviously I think my claims have merit or I wouldn’t bother pursuing them. Regardless of which vARO one uses, the M 21 adjudications manual predetermines the outcome. If A is greater than B and C is a multiple of 1 or indivisible by 2, then you’re screwed. When you file for increases, you evidence must support your contentions. Our Vet Bennie here is truth-challenged in this vignette. He probably is deserving for any number of reasons, but starts investigating what he’ll need to win rather late in the process.

Some have written me privately over the years asking what it will take to get to the next higher rating. I don’t think that’s cheating or gaming the system. Its common knowledge if you know where to look. Bennie didn’t or he might have padded the bill a little better or kept a diary that confirmed his contentions. What he ran afoul of ultimately was the weight codicil hidden in  38 CFR § 4.112. Weight determination has it’s own code and isn’t mentioned in DC 7354 other than to say minor versus major. It was up to Bennie to find that one and it appears he didn’t. Oddly, in the decision, you will see written that it is included in DC 7354, Note #2. It isn’t.

The Court has confirmed that you do not need a note from from your doctor prescribing bed rest for hep claims.  You are considered intelligent enough to observe this on your own. That phraseology is in the one on lower back ailments DCs specifically but not in the 7354 Diagnostic Code. This is a more recent interpretation by the Court. I went to look for it just now but as addled as my brain is, I didn’t find it. The decision held that a note from the doctor stating your symptoms of near-constant debilitating symptoms requiring bed rest must accompany the lower back diagnosis to support the rating (DC 5243– Note #1) see below:

Note (1): For purposes of evaluations under diagnostic code 5243, 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.

DC 7354, on the other hand, says:

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.

Tricky little devils aren’t they? I wager it won’t be long before we look that up and notice a discreet, unannounced change to the 5243 language.

Looking at Bennie’s decision, we see many things. First, let’s look at what he’s attempting. He is currently rated at 40% and is trying to scale Mt. Sixty. It’s an arduous climb:

40% says

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 warrants a 40 percent rating.

60% demands:

A 60 percent evaluation is indicative of 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.

I highlighted the word “or” for a good reason. There are two sets of criteria. Either you qualify under one set or you rely on the subsequent assessment. In both cases, there is the clear requirement for a set number of days. Four weeks can be construed loosely to be 28-31 days. Six weeks will be viewed as 42-45 days.

Bennie said (under oath):

He related incapacitating episodes as often as three times per month, lasting for one day. Over the last year, he had 36 incidents of incapacitation for a total of 36 days. 

Bummer, Bennie. You stepped on your necktie. But that isn’t all…

In this regard, although there is a showing of weight loss, the more probative evidence is against a finding of substantial weight loss. Note (2) under Diagnostic Code 7354 defines “substantial weight loss” as a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The appellant weighed 125 lbs during his pre-induction examination in December 1967. He weighed 140 lbs at his May 1969 separation examination.

This is untrue. Note 2 says nothing of the sort. Its stated in § 4.112 as I mentioned above.

§ 4.112 Weight loss.

For purposes of evaluating conditions in § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease.

Regardless of where it is, you can see they are dredging up every one of Bennie’s weight measurement they can find to support their denial.

A weight of 145 lbs was recorded in August 1985.

 He weighed 158 lbs in October 1999.

The appellant weighed 151 lbs in January 2004 and 148.8 lbs in May 2004.

In an August 2005 examination, it was noted that he was diagnosed with Hepatitis C in 1968 and that there was a weight change from 175 lbs to 145 lbs in a 12 month duration. He weighed 150 lbs at that time.

 A weight of 159 was recorded in April 2008

 In the August 2009 examination conducted by Dr. B, it noted that the appellant’s weight was down from 155 lbs to 150.5 lbs with boots.

He weighed 147 lbs during the August 2009 VA examination. During that examination, he reported that he had lost 30 lbs over the past two years. 

Bennie, what were you thinking? You’re a guy!. You don’t have to lie about your weight. What you do have to be careful of is not to give the bozos ammunition to deny.

The Board has considered the appellant’s reports of weight loss. However, we find him to be an inaccurate historian and not credible. In this regard, we note that in the August 2009 VA compensation and pension examination, a 30 lb weight loss over a two year period was reported. However, when examined by Dr. B later that month, he did not report such weight loss but rather a 5 lbs weight loss. As such, we find that the appellant has been an inconsistent historian when reporting his weight loss. 

Clearly, the appellant is competent to weigh himself and report his weight…  However, we find it telling that when he reported his weight to Dr. B he reported a 5 lb weight loss rather than the 30 lbs weight loss that was reported to the VA examiner earlier that month. We find it wholly incredible that he would have not reported an accurate weight loss to his treating physician. Such histories reported by the appellant for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.

VLJ H. N. Schwartz pounds the final nail into the coffin on the less than 6 weeks of incapacitation but still gets it wrong on requiring that he bring a note from Dr. Dude saying he’s on bed rest.

Furthermore, we note that while the appellant has reported having incapacitating episodes, his episodes fall short of the duration requirement and there is no indication that they require bed rest and treatment by a physician. In the August 2010 examination, the appellant related having had 36 incidents of incapacitation for a total of 36 days within the year. To meet the criteria for a higher rating six weeks of incapacitating episodes which require bed rest and treatment by a physician must be shown. At most, the record shows that the appellant has related having five weeks of incapacitating episodes within a 12 month period which is short of the six week requirement. More importantly, there is no showing that these episodes require bedrest and treatment by a physician. As such, the above does not meet the criteria set forth for a higher evaluation.

Bennie will, if he’s intelligent, go lick his wounds and fight another day. There’s no money in taking this up to the Big House. If DAV is true to form, they’ll counsel him to go home anyway. It’s too bad the service officer didn’t peruse the fine points of § 4.112 and the specific requirements of DC 7354 on 60%. Since he testified that he only had 36 bad hair days, he’s doomed. The SO should have dialed in on that one even if he overlooked the weight loss discrepancy.

Profit from this. Analyze your claim from the standpoint of the rater who is looking for the smoking gun to deny you. He didn’t have to look far here and chances are the denial language on the RO SOC was identical. Absent any clarifying testimony to the contrary, the bVA decision was a given. And if you use a VSO? Well, make sure they’re conversant in 38CFRspeak. Bennie’s certainly wasn’t. As an aside which has no relation to this, many Vets are unaware that Elton John wrote a really cool song called Bennie and the Vets. I’m not sure if this was the Bennie he was referring to though. There’s a lot of Vets named Bennie out there.