In what many Court watchers fear may be a VA-wide crackdown on Veterans, the CAVC affirmed a rating reduction based on medications used to control the problem. As with most sensitive cases, the name of the Veteran was redacted to protect his identity and spare him any undue publicity. Many seminal cases in the past (AB v. Derwinski, EF v. Derwinski etc.) have used this sobriquet in an effort to ameliorate undue media attention to the person involved. However, in recent years, this practice has been deemed overbroad and the Court declines to offer the shield of anonymity. Fortunately here, the Veteran’s plea prevailed.
Meet KY (not his real initials). Mr. KY was a groundpounder in the great Vietnam Misunderstanding. He served uneventfully as cannon fodder in I Corps as an 11Bravo (infantryman) and saw some combat during the Cambodian Intrusion in May of 1970. He separated in 1972 and had no other serious repercussions medically until the 80s.
KY inexplicably came down with DM2 in the early 1990 with no appreciable weight gain. There was no precipitating factor for it. He had no family history of it. He filed for service connection (SC) in 1991 during the beginning of the AO claims but was denied in 1993. Even though he did not appeal his denial, this was a propitious move as it cemented his right to an effective date far earlier than most. While his doctors had no explanation for it until the NIH declared DM2 as being a presumptive for Agent Orange exposure in 2001, he felt it was connected. Smart man. He refiled for it in 2001 and was awarded a 20% rating based on his symptoms. His effective date, after a prolonged appeal to the BVA, was finally established as 1991. Following that, he was awarded Special Monthly Compensation K (SMC-K) for loss, or loss of use of, a creative organ.
In the following years, his Diabetes worsened and he began taking insulin. Subsequently, he was awarded a 40% rating for his DM2. However, he asked for and was prescribed VA’s generic erectile dysfunction drugs such as Mycoxaphloppin and Mydixadroopin to aid in intimacy. After admitting some success while on the drugs in 2011, the VA moved to reduce his SMC-K rating, citing his loss of use of a creative organ was ameliorated by the prescribed drugs.
Mr. KY opted to quit taking the little blue pills due to High blood pressure but VA still pursued the reduction saying he no longer qualified. Apparently, at the same time, KY also opted to seek help outside the VHA medical system for his sexual dysfunction. A naturopath prescribed testosterone cream applied transdermally (on the skin) to bolster his system with some degree of success. All attempts to halt the VA ratings reduction, however, were futile.
In their 2011 Statement of the Case(SOC), VA cited to this self-described marginal success as further evidence that he no longer suffered from loss of use. The BVA affirmed the decision based on the same precept. KY continued to argue that sans the pills, he was entitled to the rating. He appealed to the Court. Due to other ills, his case had been advanced on the docket at the RO under Rule 900 (38 CFR §20. 900 (c)).
Attempting to also use fraud as a lever, the BVA had somehow come into possession of the outside Naturopathic treatment records. They reasoned that he attempted to conceal his usage of testosterone to fraudulently attempt to collect SMC-K when he was not entitled to it.
The Court hewed to the facts and took a strict view of the SMC-K interpretation but overlooked the fact that KY’s rating and his ED had, by now, been in effect for over twenty years. This is the quandary. If you use a drug or prosthesis device (perchance a CPAP (constant positive airway pressure) for sleep apnea) to control or improve your health, does this, by default, cure the underlying ill or the underpinning of the SMC-K rating? Put in another context, would being cured of HCV via Interferon or the newer Sofosbuvir (now in FDA trials) constitute a cure such that a rating of less than 20 years can be reduced in the absence of an active disease process? Since VA has no trial drug protocols for Sofosbuvir, would usage and a cure constitute fraud if you did not divulge it and were not asked about it?
This is humor and conjecture. I apologize to the good folks at KY Jelly. To my knowledge, there are no generic drugs by the comical names I used above. KY does not exist but his imaginary situation is rapidly coming to a head for many of you. VA has become the object of ridicule by many in Congress and the public for rating sleep apnea requiring a CPAP at 50%. VA considers this a very high rating even though the monetary compensation for VA claimants is negligible ($888/mo.). Similarly, while DM2 often causes erectile dysfunction, some get relief from the plethora of drugs developed to combat it. What of penile implants? With the advent of Gilead’s new drugs to cure HVC and leukemia, it is only a matter of time before VA visits this lucrative avenue to decrease or rescind our ratings wholesale.
In a nutshell, which way will the VA turn in the near term? Will they move to give a haircut to those who obtain relief from medical devices and prescriptions under the theory that the Veteran no longer suffers from it? If a Veteran goes outside the VA system (increasingly a possibility with Obamacare) and obtains relief from some (or all) symptoms he receives compensation for, what is the bright line rule that will decide fraud? Most importantly, with new medical developments constantly emerging, does remission of HCV effected via a drug constitute a reason for reduction or elimination of a rating?
The definition of fraud or being cured is going to undergo a microscopic examination in the near future as more and more medical research eradicates disease. Vets have a right to cutting edge medicine and it appears it can currently be found only outside the VHA system. Witness VA’s insane predilection on continuing to use Interferon (VERTEX and Victrelis) with the prospect on the horizon of the new nucleotide analog inhibitors being far safer and less debilitating over your lifespan. If your prior treatment has caused severe debilitation via Interferon prophylaxis and you have secondary ailments such as DM2 for life, are these not compensable? The VA will eventually be introducing what they are most famous for- the slippery slope. If you can be “healed” of a chronic disease or in some way stabilized such as via a CPAP, does this constitute “improvement” that can be expected to be maintained in the future? For life? Expect a new interpretation when the revisions to Part 4 are finalized and submitted to the Federal Register.
We have a Vet we are helping right now (Malcolm in the Middle I) (Malcolm in the Middle II) (Malcolm in the Middle III) who has incurred numerous, permanent manifestations of diseases and debility often associated secondarily with either HCV itself or the consequences of Interferon treatment. VA maintains he’s whole and healthy in spite of DM2, depression, fibromyalgia, chronic cognitive dysfunction (read brain fog) and deteriorating vision. Sound familiar? This trend will only accelerate as VA moves to tighten the requirements for service connection. Since they insist on hiring the least intelligent medical personnel at the VBA to do their bidding, we constantly see some truly convoluted thinking that reaches for conclusions to deny Veterans their due.
This was meant to be a compendium of humor mixed with legal analysis that will soon be upon us. When that day arrives, it won’t be humorous. I merely publish it to spur on discussion and prepare Veterans for what inevitably lies ahead. Forewarned is forearmed.
CPAP. Problem solved. Sleep apnea
now rated at 0% noncompensable.
ED repair order.
Bye bye to SMC-K
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