Imagine having a transplant and still being infected with HCV. Hardly a strange scenario. The St. Pete RO must be hardcore. All they want to give Mr. TampaVet is 30% on a post transplant with 10% thrown in for his transplant scar. Ouch! What of the HCV side effects? The fatigue and all the other symptoms we invariably associate with HCV apparently are comprehended by the 30% in Diagnostic Code 7351-or are they?
Take a peek at this little-used ploy to give you 10¢ on the dollar.
|7351 Liver transplant:|
|For an indefinite period from the date of hospital admission for transplant surgery||100|
|Note: A rating of 100 percent shall be assigned as of the date of hospital admission for transplant surgery and shall continue. One year following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.|
Now they’re stuck on stupid and think this is all that is permitted. The assumption that there is pyramiding under 38 CFR §4.14 is just that-an assumption on their part. There is nothing in DC 7351 discussing the disabilities one sees discussed in DC 7354. Here’s Veterans Law Judge (VLJ) J.A. Markey’s take on it.
The Veteran and his service representative also have contended that, because the Veteran’s hepatitis C associated with his status-post liver transplant has worsened, he is entitled to an initial rating greater than 30 percent under DC 7354. See 38 C.F.R. § 4.114, DC 7354 (2011). They alternatively have contended that the Veteran is entitled to a separate compensable rating for hepatitis C associated with his service-connected status-post liver transplant. The Veteran is not entitled to an initial rating greater than 30 percent for his service-connected status-post liver transplant with hepatitis C on the basis of worsening disability due to the residuals of his liver transplant surgery (including hepatitis C) because that would constitute pyramiding under the Rating Schedule. See 38 C.F.R. § 4.14 (2011).
What, exactly is contained in § 4.14 that provokes this interpretation?
Avoidance of pyramiding.
The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.
Here are the two ratings for HCV which Tampaboy feels may be appropriate.
|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||40|
Nothing in DC 7351 discusses what is incorporated in DC 7354. Nothing. This is priceless as it will allow vA to dawdle for several more years and keep the Vet in poverty. Admittedly, part of the problem is the VSO (VFW) who is attacking this from the wrong angle. Johnny Tampa should have filed for both diagnostic codes rather than just the transplant code. His HCV is blooming like perennial pansies that can’t be quelled. Any thought of tossing in an Interferon napalm strike is out of the question as it would destroy the new liver in a heartbeat. vA raters wouldn’t know that because it is a medical problem way over their heads. St. Peter’s puzzle palace suffers the same problem as all ROs. They consult their M21 bible and run aground on the pyramid. No way to get around it can be ascertained because no one does their homework and actually looks up the ratings to discern the actual phraseology of the diagnostic code. What makes matters worse is this unfounded logic.
The Board also notes that the 30 percent rating currently assigned for the Veteran’s service-connected status-post liver transplant with hepatitis C contemplates moderate liver disability. The competent evidence does not show that the Veteran’s service-connected status-post liver transplant is more than moderately disabling such that he is entitled to an initial rating greater than 30 percent under DC 7354 for hepatitis C associated with his service-connected status-post liver transplant.
Newsflash. Does anyone see any discussion of DC 7354 in DC 7351? In the same vein, does anyone see a 30% rating listed under DC 7354? Ruh-oh, Rorge. Here’s another problem area. Once a Vet has established service connection, he/she no longer needs a medical nexus to rationalize a higher rating. This is accomplished via medical examinations or C&P determinations. A nexus is to tie two events together-e.g. a GSW and subsequent HCV via a transfusion. Requiring a nexus for a higher rating is not required. That a VLJ would sign his name to this is criminal-or evidence of poor legal training.
The BVA usually spots this and clarifies the RO’s thinking on these mishaps but here they simply parrot the RO’s take on it and buttress it with CAVC precedent. Johnbo has until December 3rd to untie or cut this Gordian knot. A quick trip up to 625 Wagonburner Ave. is the sure ticket. I’m sure the VFW SO is still back at the RO scratching his head and telling Johnny it’s time to roll up and go home after a good fight.
Service Officers are not trained to spot inequities. They are taught the intricacies of mail delivery. They are taught how to parse a C-file and determine if you have anything in your contemporary service medical records that will support a filing for your current illness. This is why they have such a hard time with our complicated HCV claims. Rarely is there ever a smoking gun to point to for HCV. Much conjecture about risks is the only avenue. Giving them their due, they are unprepared for the technical prowess needed to win these claims. This is why you see that timeworn, hackneyed phrase ” There is no diagnosis of HCV in the Veteran’s medical records showing a diagnosis of HCV in 1967-1971.” No rebuttal based on the fact that it wasn’t discovered, let alone diagnosable until 1989 is ever presented. Rarely, this occurs when an astute judge at the Court or the occasional VLJ remarks on it and kicks it back for a remand. Otherwise, it goes on to be an unappealed denial.
The introduction of the transplant diagnostic code was a token offering to tide us over the rough spot of hospitalization as it rightfully should. The 30% follow-on is poorly conceived as it comprehends absolutely nothing more than the residuals of a transplant. Likewise, tossing in 10% for scarring is a poor panacea. Why is it they gave him the scarring rating without a prolonged discussion on whether that was pyramiding, too? With their tortured logic, it could be extrapolated that scarring after surgery was contemplated as well. Doesn’t surgery imply there will be a surgical scar of some sort? At best, there would be an accounting at the promised one year, post-surgical examination that addressed the secondary symptoms that are invariably present from the underlying disease-i.e. HCV. Here, it is entirely absent or relegated to a dark corner and given short shrift.
The whole decision is flawed on its face and ripe for a reversal and remand. Why the VFW has been AWOL on this in their arguments on appeal is typical. They are Leaglezoom.com, not accomplished law dogs. Their talent lies in their ability to fill out a Form 21-22 Power of Attorney and playing mailman. Beyond that, they are over their heads in the legal deep end. This is what passes for justice in our nonadversarial, Veteran-friendly, ex parte judicial forum.