You get that warm, fuzzy, content feeling about your Regional Office when they keep committing CUE and the Board keeps remanding it via the 59th RO (AMC or Appeals Management Center). Its now 2012 and they’ve been playing pingpong with it since 2003.
If this doesn’t make you want to give the rater and his DRO mentor the Howdy Doody award for best impersonation of a human being, there’s no help for you. Seriously. Once to fix a rating defect is acceptable for a defective download from the M-21 ouija board. Remember that the DRO with the Masters Degree signed off on this, too. Twice and you begin to wonder what they put in the Tampa municipal water supply. Thrice and you decide to check if the family tree is a straight line that crisscrosses.
Now, the claim also traversed the AMC so it had to have even more eyes on it (three times). Perhaps you have a mental aberration and are dyslexic. Why, you might confuse 7345 with 7354 if you were a lay person. But if you were highly trained in the Force and are now a Jedi Master, this should be child’s play.
Regrettably, the Board finds that another remand is required in this case to further develop the record and ensure proper application of all applicable rating criteria.
The Board has broken down the issue into three issues and recharacterized the initial assignment of a 40 percent evaluation from July 31, 2000, to July 1, 2001, for simplicity. The Board has remanded this case three times, each time informing the RO that it committed error when it assigned a 40 percent evaluation under Diagnostic Code 7354 prior to this Diagnostic Code’s existence and requested that the RO fix this error. See July 2007 decision on page 13; September 2009 decision on pages 2-4; and October 2010 decision on page 8. As of the date of this current remand, the error has not been fixed, and it cannot be ignored. The Board finds as fact that there is clear and unmistakable error in the July 2003 rating decision, wherein the RO assigned an effective date of July 31, 2000, under a Diagnostic Code that did not exist until July 2, 2001. 38 U.S.C.A. § 5110(g). The Board is remanding for the AMC/RO to issue a rating decision wherein it concedes clear and unmistakable error in the July 2003 rating decision, and corrects the error that was made.
As to the other portions of the claim, the Board cannot decide the portion addressing the 40 percent evaluation prior to January 31, 2011, because it is possible that the AMC/RO would find that a 60 percent evaluation under Diagnostic Code 7345 (in existence in 2000) would be warranted, and an evaluation cannot be reduced because of a change in the rating criteria, unless genuine improvement has been demonstrated. 38 U.S.C.A. § 1155 (West 2002) (“[I]n no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.”). Thus, the Board must wait for the RO to address the clear and unmistakable error before it can decide the increased-evaluation claim prior to January 31, 2011.
In the October 2010 remand, the Board in part requested that the RO afford the Veteran a VA examination to determine the current severity of his hepatitis C. The Veteran underwent an examination on January 31, 2011; however, the report is inadequate for rating purposes. In this regard, although the examiner provided the results of liver function tests, the examiner did not comment on the extent of liver damage shown by these results. The examiner also stated that the frequency and duration of incapacitating episodes could not be determined, as the Veteran reported them to be chronic. However, the examiner was advised that an incapacitating episode is a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Thus, the examiner should be asked to clarify the duration, if any, of such episodes.
Additionally, the examiner noted that the report of a January 24, 2011, liver biopsy was not yet available and that, “The severity of the [V]eteran’s chronic Hep[atitis] C will be known once liver biopsy comes back. Unemployability will be determined when the biopsy results are know[n] and severity can be determined.” See examination report on page 3. The January 2011 biopsy results were not associated with the claims file, and the examiner never provided an addendum to the examination report after having reviewed the biopsy report prior to the case being returned to the Board.
Given the above, the AMC/RO should associate with the claims file the January 2011 liver biopsy report and return the claims file to the examiner who provided the January 2011 examination (QLL, M.D.,) to obtain an addendum that properly addresses the Board’s questions as set forth in the October 2010 remand
If we were talking birds dogs, I’d have to conclude that dog don’t hunt. We are talking two signatures here. One must come from a DRO who has 10-15 years of experience doing this. Using the wrong rating code is Rating 101. You don’t make this error if you know how to read the M-21. And if you can’t read M-21, you shouldn’t even be making the coffee there.
So it is with great pleasure that I award the Alfred E. Neuman award to the St. Pete’s RO for their adroit and timely handling of Johnny Reb’s 2003 rating and indifference to diagnostic code etiquette.
Here I thought this was an anomaly unmatched in the recent annals of RO rating. I found this later and add it in now. Look at my poor neighbor. I knew Seattle had some M-21 challenged raters, but here’s the evidence. 30% for 7312-yep. 60%? No such animal. The BVA judge is scratching his head and apparently has been for some time since the last remand in 2008 hit the “What is it they’re remanding for?” wall. Sometimes you have to actually read the remand to understand what it is you are being asked to fix.