Remember back about 35 years ago hearing that on TV Saturday morning? Sandwiched in somewhere between Bugs Bunny and Wally Gator was a public service announcement attempting to teach children how to speak and understand their language. Hopefully some of it sank in.

I have been questioned extensively by Vet’s wives about this subject lately. This is interesting. More and more of them are turning to the internet and questioning why their husbands should suffer silently with what can only be service-connected disabilities. Obviously, men are less inquisitive about liability in regards to their service. Then again, VA doesn’t have a big outlay for advertising about compensation entitlements. As for specifying the mix of ingredients, they appear to be equally evasive. Let’s revisit English 101.

Conjunctions, and, by extension, the word conjunctive, are ways to link succeeding phrases together into one complete sentence. When dealing with the VA, conjunctions become legal punji pits and it requires a Semantic Sherpa to lead you up the mountain. “And” is the most recognized conjunction but there are others artfully inserted including the adverb “including”. “With” is another and so on. You get the picture.

The antonym of conjunctive is disjunctive. Disjunctives are easy to spot, too. The most frequent obviously is “or”. Other forms are “without” and “absent” and so on.

VA employs these verbal Claymores illegitimately for the most part. They’ll confuse you into thinking you require both sets or will pluck and assemble a set you don’t have to give you a rating below what you are legitimately entitled to. What this tells us is that many, many Vets end up with less when they are most in need of it. Since they are wrong 60% of time, they invented me. I trace my ancestry directly to my first filing.

Let’s look at an excellent example and one I am well-versed in.  I’ll take Hepatitis for $500, Alex. Diagnostic Code 7354 deals with HCV exclusively. All the other flavors are covered by the older, original DC 7345.

Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)—–100%

As you can clearly see, there are no conjunctives or disjunctives here. The “and” before right upper quadrant pain is inclusive of the suggested symptoms. Note also that it says “such as”. This allows you to suffer from some, but not all, the listed symptoms and still be considered “near-constantly debilitated”. You must emphasize this lenient requirement in your claim for increase of they will proceed to the M 21 Ouija sequence. This is also called the H2IK sequence (Hell If I Know). Absent any documentation of near-constant evidence, they revert to default. Remember, they won’t often go looking for it. You have to prove it. Another punji pit is disguised in that 100% rating.

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.

We’ve already fought the battle over whether “bed rest” need be prescribed (it doesn’t). It helps to add it in your complaint list and explain that you tend to lie down a lot more and take long siestas since the HCV and you became roommates. VA has used this to deny so I mention it.

Now, here’s Hep minefield for 60%

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—60%

Let’s break this up into the two particular groups of symptoms and highlight the conjunctives in each. Red for the conjunctives and blue for the disjunctive break. Everything before the blue “or” in the first group is required and everything after is a second category. Either one will give you the magic 60 percent but the important ingredient is having the majority of the symptoms in the first set, or exactly if not more, documented incapacitating episodes of 42 days or more per year as described in the second set .  41 days is not enough. 36 days is right out.

Conjunctive ratings permeate virtually all of the Diagnostic Codes. More Veterans stub their toes on this than anything else after initiation into the club and learning the password and the magic handshake. What’s more, VA has a way of picking and choosing back and forth between the two subsets of symptoms to make it look virtually impossible to attain that higher rating you are entitled to. Remember, most Veterans do not have a copy of the Diagnostic Code. They rely on their free legal help or VA to be honest. I will not express an opinion about that.  The Court has addressed this several times but the important concept to remember is that you are simply required to have “all or most all” of the enumerated symptoms of one subset-not both. If you have the daily fatigue, malaise, anorexia with substantial weight loss and hepatomegaly you win. You can also win even without the daily fatigue and malaise as long as you manifest the latter symptoms. A substantial weight loss has its own punji pit in §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.

So, with this in mind, you look at the second subset. This seems to correlate more closely with what many of us suffer. The combination to the lock is the number of days you were incapacitated. VA will examine this facet to death and invariably deny unless/until you plug the hole in the dike with some legitimate pay stubs and a note from your doctor. Medical records are excellent for this purpose. They demonstrate you were sick enough to seek out his/her services ergo you were too sick to work. Multiply this by 42 or more days in a year and you have a 60% rating. Again, the incapacitating episodes need to encompass some of the mentioned symptoms of fatigue, nausea, malaise etc. but not each and every one of them like a laundry list. Unless they are incredibly dense at the RO, it can be assumed if you were at the doctor’s office then you were not at work. You may be forced to direct their attention to this though.

Most Vets don’t think to prepare themselves for this. Medical records are vague. Doctors are not renowned for their loquacious verbal habits either. I have mentioned before my habit of arriving for exams with a “Problems List” which I give to them when I check in. All the symptoms are listed in the same order as the Diagnostic Code in order for the VA examiner to stay on track and copy from. In 2008, after spotting the Diagnostic catchphrase “near-constant and debilitating”, I plagiarized it directly into my medical notes I was asked to fill out at the C&P. They asked what my symptoms were in my own words. Well, look at this way. They asked me for a frank assessment. I didn’t volunteer the information. Once asked, I simply parroted a phrase that pretty much covered the situation. It appeared magically later on in the doctor’s description of my symptoms. I suspect that is why I never had to climb the VA ratings ladder as so many of you did. I don’t consider it cheating but rather common sense. Words can be your asset or your enemy in this business. Why not exploit an opening in their armor? They certainly have no qualms about side-swiping you and leaving you in the ditch with 20%.

The second example and one most will hit the wall on is Diagnostic Code 7913-our old friend DM2. VA is in the habit of handing out 0, 10 and 20% ratings like plastic necklaces at Mardi Gras. When they cross over into 30%, they have to pay for your wife and children, too. This is a dealbreaker. It marks the inevitable crossover into big bucks land. VA will fight you hard to keep you on Penny Lane. I don’t care about all that hooey they trot out saying we “Grant if we can and deny if we must.” That’s for the cameras and the Dog and Pony show on Capitol Hill.

Here’s DM 7913 for 20%

Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet

And for 40%

Requiring insulin, restricted diet, and regulation of activities

You will discover that VA will go to the BVA almost every time if they think they can roll you on this. A VSO is no panacea for it, either. Failure to have a note in your file restricting your golfing tee times is the cause of almost all denials here. In the alternative, they’ll gig you if your physician fails to mention that he has proscribed anything of, or having to do with, sugar and 50 other tasty, delicious things in your food repertoire. The 20% rating contains the disjunctive. It is absent in the 40%. Yet, here again, the VA has breached their hull on the CAVC rocks again and again hoping to enforce a requirement of all the symptoms rather than a majority.

No bozos

And as an aside, for those of you who do not know what a Bozo No-No is, I will relent. When I was in boarding school, we were culturally challenged. There was very little on TV worth watching and only one TV per dormitory. One show in the afternoon following sports and prior to dinner was the Bozo show out of Boston. Thirty minutes of cartoons and usually some Cub Scouts from a local den was the usual fare.

On the memorable episode, the Scouts were required to carry an egg in a spoon in each hand for a relay race. One inept Cub Sprout kept dropping the egg and had to return to the starting gate to reload. He let slip the expletive “Damnit!”on the second attempt. That brought old Bozo over in a heartbeat. This was live, black and white, 1968 TV.

Bozo informed Johnny Scout that the use of that word was a “Bozo No-No” and would result in social opprobrium in later life. Apparently the moment didn’t sink in with the desired effect. The Scout turned, faced Bozo and said in a peeved tone “Shove it, clown.” The network promptly cut to a commercial and Johnny was no more to be seen after they resumed. Bozo has no idea he is experiencing far more than his original 15 minutes of Andy Warhol fame. I like the term and have occasion to use it frequently to describe VA’s wealth of judicial ineptitude.

And that’s all I have to say about that.

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About asknod

VA claims blogger
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