FED. CIR.–MIDDLETON V. SHINSEKI-I’LL TAKE DM2 FOR 40, ALEX.


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When it looks like a duck and quacks like a duck
then a duck by any other name would be the same…

A new look at an old friend. I’ve preached about the VA’s rating system on DM2 many a time. It is constructed in a rambling conjunctive “and”/  disjunctive “or”, progressive manner with each new add-on permitting a rise up the ladder. Nevertheless, it is necessary to have each item in the recipe or the VA says you do not pass Go! and collect 40%.  Mr. Middleton’s dilemma began with some one with a smattering of legal knowledge saying “Insulin? Byetta? What’s the dif? They both do the same thing. Jez, Birdeye, I’d go for it. That’s $661 a month versus $442, dude. We’re talking some serious walking around money here.”

To wit:

7913 Diabetes mellitus

Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated 100
Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated 60
Requiring insulin, restricted diet, and regulation of activities 40
Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20
Manageable by restricted diet only 10
Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913.
Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.

The big jump from 20% to 40% has always been the step on the necktie moment for Vets. Failure to have a doctor insert something that says the Boston Marathon is right out mans you can’t get there from here. 40% is also purely conjunctive. There is no other interpretation. Three things. Not 2.4 things.

Mr. Birdeye L. Middleton attempts to bridge the gap with an “injectible” rather than “oral” hypoglycemic agent- in this case Byetta®- to bypass the “requiring insulin” codicil in 40%. His argument falls on deaf ears which makes this whole appeal to the Dead Circus a horrible waste of his time, our money, and innumerable trees. Nothing of any consequence was decided. DC 7913 is not ambiguous. It is not confusing. It poses no problems for mortal Vets to comprehend. Veterans Service representatives maybe, but not normal folks.

Middleton argues that the court’s interpretation limiting the regulation to require a prescription for a specific medication is inconsistent with the benefits scheme and regulatory history, which focus on the severity of the impairment and how well a veteran’s diabetes is controlled. Moreover, he contends that interpretations of ratings that rely on specific medications rather than impairments become obsolete as new drugs are introduced; therefore, any ambiguity should be resolved in favor of referencing symptoms, e.g., whether insulin is needed for control regardless whether it is directly injected or endogenously created after administering a medication such as Byetta®. The Secretary argues that the plain language of DC 7913 unambiguously recites “[r]equiring insulin,” which should be given its ordinary meaning and does not encompass using an insulin-inducing drug as
analogous to using insulin.

Insulin. No one has a patent on Insulin. It’s a drug manufactured by your body. If you don’t  manufacture  it, you die. DC 7913 says Insulin. It does not say Bristol Myers Brand, Byetta or Bayer. Case closed. I note Barton F. Stichman of NVLSP fame was in on the side of the appellant.  Close but no cigar, Birdeye. I don’t see it. VA is too slippery for that manuvre.

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About asknod

VA claims blogger
This entry was posted in Fed. Cir. & Supreme Ct., Tips and Tricks, Veterans Law, Vietnam Disease Issues and tagged , , , , , , , , , . Bookmark the permalink.

5 Responses to FED. CIR.–MIDDLETON V. SHINSEKI-I’LL TAKE DM2 FOR 40, ALEX.

  1. Kiedove says:

    Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.

    DIAGNOSED BY WHOM? The VA only? My DH’s DMII was diagnosed by a private doctor. It is controlled by diet. His glucose levels are in the pre-diabetic range so his VA primary says he doesn’t have it. It’s not in his problem list even though it’s a chronic condition.

    • asknod says:

      Simple- no dietary controls = DM2. Go off the diet. Make appt. Go to VA appt. Drink a soda pop before you go in (optional). Get a Dx of DM2. File claim. Now, if you have a disease, and you have a dx by a doctor, you have a claim. If you used a CPAP to prevent snoring, VA does not reduce your rating for sleep apnea to 0% because it is “controlled”. They give you 50% for it. Same for DM2. The trick is to arrive with a disease. If you do a good job of controlling it, you will not “exhibit” it. Please also note that DC 7913 offers 10% for “Controlled by restricted diet only”.

  2. Randy says:

    The only holdup, in my particular case, was lack of the correct English needing to be in my medical records describing caution with strenuous activity. Well shoot partner the VA drs. told me to try and keep on an even keel and “avoid stress”. Well when you tell me not to stress but don’t want to hear about why you are the cause of my stress it kinda is like a three legged race. The language is there but not in the exact format and thus it is what it is.

  3. karen stern says:

    So, in plain English, If my husband has Diabetes !!, takes oral meds, on a restricted diet, still has readings that spike high (verified by bloodwork at VA) as well as peripheral neuropathy, according to what you have written, what rating should we expect?

    • asknod says:

      20%. Oral meds is the deal breaker. If it was injected, the conditions would change. But mostly, you need something in the doctor’s notes that specifically admonishes him not to engage in strenuous physical activity. Recent Court cases have relented and said if “most” of the conditions are met or if he is substantially disabled due to this, a 40% rating is permissible. Each case is unique. VA has a ironclad policy of what you need-No tickee, no laundry.

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