Here’s one I’m sure will have interesting implications for Veterans for some time. I’m not being humourous, either. David J. Jones finds himself in a holding pattern on the upwind leg and can’t seem to get tower clearance to land. The Secretary has taken it upon himself to reread the diagnostic codes and insert the beneficial, healing effects of antacids and other over-the-counter medications to artificially prevent moving up to a higher rating. The problem is that Uncle Eric expressly inserted language discussing medications in other diagnostic codes freely and neglected to insert it in Mr. Jones’ diagnostic code (7319 -irritable colon syndrome or ICS).  Nevertheless, we are instructed to assume it was contemplated all along.

I think what sets Jones apart from other decisions in this vein is the Secretary’s high handed  position that the Court has no business deciding anything to do with diagnostic codes period. Throwing the gauntlet down in front of the Court in such a fashion is bound to get a rise out of them and it certainly had the desired effect-albeit not what Eric had hoped for.

In response, the Secretary argues that the Court is precluded by statute from reviewing VA’s Schedule for Rating Disabilities. Secretary’s Br. at 14 (citing 38 U.S.C. § 7252(b)); Butts v. Brown, 5 Vet.App. 532, 539 (1993)). He also asserts that the rating criteria for IBS contemplate “whether the frequency or severity of . . . IBS symptoms were lessened or controlled with medication,” as the criteria “do not differentiate between a claimant’s condition with or without medication.”  Jones v. Shinseki (2012)

The above in blue is the vA “shape shifter” theory that expounds the “If we didn’t specifically mention it in the rating, that doesn’t mean we didn’t contemplate it. For the record, now that you have called us out on it, we did consider it. Just because we didn’t specifically discuss it is immaterial. You have to trust us when we say we considered it. We wrote it so we know what we meant.”

Consider also what you say to vA. In my book, I’ve made it clear that you have to be anally specific (pun intended) about what ails you and how you describe it or vA will turn it around against you. Here is a prime example that illustrates the technique.

The appellant also contends that the Board clearly erred when it determined that he did not suffer from diarrhea or, in the alternative, that it failed to provide an adequate statement of reasons or bases for that determination, as it did not explain why”loose bowel movements” did not constitute diarrhea for the purposes of the rating criteria for IBS.  In support of this argument, the appellant cites to several medical dictionaries, which define diarrhea as “‘abnormal frequency and liquidity of fecal discharges,'”  and “‘[a]n abnormally frequent discharge of semi-solid or fluid fecal matter from the bowel.”  He asserts that the medical examinations on which the Board relied are ambiguous at best and that the Board improperly discounted his lay testimony as to his symptoms.   Jones supra

vA  then goes into high gear and attempts to let the air out of Davey’s tires:

The Secretary responds that the Board did not clearly err, as the December 2009 VA opinion on which it relied stated that the appellant “‘has had loose stools that occasionally are prolonged periods of diarrhea.'” Similarly, he notes that, although VA treatment records note abdominal distress and loose bowel movements, they are negative for diarrhea and constipation.  Finally, the Secretary argues that the definitions of diarrhea proffered by the appellant require liquidity of bowel movements, as opposed to mere looseness.      Jones supra

Well shoot, Davey. There you go with those “vague” definitions.  Loose is not diarrhea- not by a long shot where we come from. Besides, you only mentioned it about 40 times over the last 10 years.  That hardly sounds like 30%.  We at the vA are at a loss as to what to make of this. You suffer one thing and are trying to make it look much worse.  You’re asking us to jump you from $127.00/month up to $435.00/month on your definition of “diarrhea”?  That buys a lot of Depends® undergarments but we don’t think you need them, bubba.  If you planned out those potty breaks a little better, you wouldn’t suffer incontinence. And shoot, if it’s only occasionally, why, how can we pay you for something that only happens rarely?  There’s a lot of Vets in far worse shape than you and we don’t hear them complaining. (We wear earplugs!)

One thing everyone overlooks on these “examinations” is what the Veteran says and what the transcriber actually writes down. Thus you can see that when a soldier arrives at a Forward Triage Station and complains of severe pain from  several SFWs (shell fragment wounds) it sometimes turns into “Patient arrived with minor lacerations”. When you go to a vAMC and see Dr. Ahmed Fahmi declaring you often have “loose stools and diarrhea 8-10 times a day”, it’s easy to understand how “occasionally” slips in because Davey didn’t wave the “near-constant” flag. It appears Veterans need more medical training to clarify what it is they suffer from. The injudicious use of general terms without specifying exactly what is wrong is the problem. No flies on vA.

The Court’s take on whether it has the authority to address these weighty subjects is unequivocal. Succeeding vA Secretaries over the years continue to arrive with the assumption that their power over Vets is absolute and the Court’s authority is relegated to minor points of law. Erspamer was a delicious case in point. So was Manio.  Telling the Court they have no authority is one of the quickest ways I know of the get the bitchslap on both cheeks.

Initially, the Court rejects the Secretary’s terse contention that it lacks jurisdiction to reach the appellant’s arguments. Although the Secretary is correct that the Court lacks the authority to “review the schedule of ratings for disabilities adopted under [38 U.S.C. § 1155] or any action of the Secretary in adopting or revising that schedule,” 38 U.S.C. § 7252(b), that is not what the appellant asks the Court to do in the present case. Rather, the appellant challenges the Board’s application of DC 7319, arguing that it applied factors wholly outside that DC when rating his disability.   It is well settled that the Court has jurisdiction to review VA’s interpretation and application of its own regulations. See, e.g., Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) (holding that the “Court should review de novo the Board’s interpretation of a regulation”); Bradley v. Principi, 22 Vet.App. 280, 290 (2008). This power includes the ability to review the Board’s interpretation and application of a DC. See, e.g., Otero-Castro v. Principi, 16 Vet.App. 375, 380-82 (2002) (reviewing the Board’s interpretation and application of 38 C.F.R. § 4.104, DCs 7005, 7007 (2001)).   Jones supra

Imagine a man (or a woman) telling an accomplished mechanic that he doesn’t have a clue what he’s about under the hood. Further imagine a long diatribe by same about how knowledgeable they are on the subject and you can see the polite usage of the phrase “terse contention” above in red. Red is an apt color because it most closely describes what Judges Lance, Davis, and our newest, Pietsch, are seeing. We see this mistake over and over. Deference should be shown when approaching the bench. Belligerent, argumentative behaviour is all well and fine when denying justice to Vets and their hired guns but it must be reined in if the General Counsel wants to prevail. Fortunately for Vets, vA cannot teach its dogs new tricks. They had their way for over two hundred years and bad habits die hard. This time, the Court has decided to make it perfectly clear that they do not intend to hear another one of these.

Thus, to the extent that the Court did not explicitly hold in Otero-Castro that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria, it does so today. This ensures that all similarly structured DCs are interpreted and operate in the same manner so that diagnostic criteria are applied consistently. Therefore, as DC 7319 is silent as to the effects of medication, the Board erred in denying entitlement to a higher disability rating based on the relief provided by the appellant’s anti-acid (sic) medication.  Jones supra

I can smell a new wave of proposed changes to the Diagnostic Codes in the wings. Watch what happens when they take aim at Interferon. I can hear it now. “Claimant knows full well  the deleterious effects of Interferon. Loss of eyesight, DM2, cryoglobulinemia, cognitive brain dysfunction, and RA are all to be expected as aftereffects and to request remuneration for them is simply not supported by any reading of Diagnostic Code 7354. By electing to submit to treatment, the Veteran knowingly gave his permission with the expectation that there might be a loss in the quality of life. To return asking for compensation under these circumstances is rude, crude, socially unattractive-not to mention boorish.”

We will continue to make headway in fits and gasps at the Court. This is one small step for Vetkind but represents much more. It repudiates the heretofore important precept that the VASEC holds sway over everything discussed in the diagnostic codes. He doesn’t. Or more concisely, his descriptions as written in Part Four of 38 CFR mean exactly what they say they do. Embellishing them to fit the circumstances is impermissible. Forty years ago we called this Mission Creep in the military. The vA has been employing it since the War of 1812.

TRUST US.

WE WROTE THE REGS.