38 CFR §4.16–A Window For HCV Vets


I have spoken numerous times of the enigma we encounter when we get the double whammy of both HCV (7354) and cirrhosis (7312). The ratings overlap so much, the danger of pyramiding under §4.14 causes VA to lowball you on both issues resulting in a Catch 22. You can’t get any higher that say 40% for Hep and still get 20% on 7312. Conversely, the same is true in reverse. In truth, you could qualify for 100% just on the Hep. but the duplication in the lower cirrhosis  rating percentages drag you back.

Here’s the repair order. Member J. A. Vet sent me this. He didn’t know he’d found the repair order. He simply sent me a BVA case and I spotted the VLJ’s logic in his rating decision supports what I am about to describe. First the decision:

Vet w/ 1000% P&T

Truthfully, it may not be 1000% but this guy would have to be the poster child for the highest % SC of all the little 10s, 20s and 40%ers. What I noticed was the VLJ’s observation that §4.16 holds a little known codicil. I will highlight the pertinent section of 4.16 first then go to the decision proper:

§ 4.16

Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

Okay. So the salient parts describe a single disease process-Hepatitis C. Let’s ignore, for a moment, the secondary side effects of the cirrhosis. The Hep is the primary disease process all by itself. Absent this gorilla, you wouldn’t be here reading this. The cirrhosis is merely a side effect of the hep. As such, it is part and parcel of the whole enchilada. Here’s what your favorite VLJ and mine has to say about the interpretation of it:

The provisions of the Veterans Benefit Administration Manual M21-1 (Manual M21-1) showed that in defining “single disability,” the provisions of Paragraph No. 16 of the rating schedule applied. The Manual M21-1 also showed that the independent 60 percent or more disability was determined based on a regular evaluation based on the rating schedule. The disabilities of 60 percent or more had to be separate and distinct from the single 100 percent disability and had to involve separate anatomical segments or bodily systems.
Although the rating schedule provided that separate 
evaluations be made for each diagnosis relating to a single 
bodily system, when such diagnoses covered a single 
functional entity and were all parts of a common disability, 
they could not be considered as being independently ratable. 
Within these limitations, however, the fact that a
100 percent disability and an independent 60 percent
disability resulted from a common etiological agent, such as
single injury, did not preclude entitlement. Manual M21-1,
Paragraph 50.38 (June 25, 1965). The Court has held that 
substantive rules contained in Manual 21-1 are binding on VA.See Montalvo v. Brown, 7 Vet. App. 312 (1995).

Paragraph 16  [38 CFR 4.16(a)] of the rating schedule indicated that disabilities of one or both upper extremities, one or both lower extremities, disabilities resulting from common etiology or a single accident, disabilities affecting a single body system, or multiple injuries incurred in action were considered to be a single disability. 38 C.F.R. § 4.16 (1972).

One thing I have noticed in the Court is that they will look at other parts of 38 CFR for guidance on contested law. Thus, if you come before them with a bitch about said dichotomy in the 7354/7312 Catch 22, they go afield in search of what is and what isn’t. Here Judge Hindin did so. He took a gazillion little bits and pieces of 10% for burnt calf, 10% for burnt thigh, 10% for burnt right palm and 10% for burnt left palm and cut the Gordian knot. As this all involved one chopper crash, one accident and one injury, our fried Vet should have gotten one burn rating-100%. I don’t think anyone reading this can say the Vet is ready for the Anaheim 10 K fun Run for Muscular Dystrophy. He’s also got a shit ton of other disabilities stacked up in the closet, the least of which is PTSD and blindness.  Yet the VA, in their inimitable way, is down in the weeds fighting over whether he can grip a steering wheel and is therefore not entitled to a grant for auto adaptation. This is the history of the VA. They do this day in and day out. They will fight over the most mundane things you and I would assume are a given. This decision is a perfect example of it.

This decision came out of one of the most overwhelmed ROs in the country next to, say, Oakland and Seattle. The fact that they continued to spoon feed 10 and 20% pieces of ratings to the Vet over 30 years is why you and I have to fight for every scrap too. By realizing this in advance, you can line up all the evidence, nexi and proof needed to win it all at the outset rather than do what this Vet and I did for 20 years.

We had this same problem with member Rob down in Salt Lake City. After fighting for years, we finally got him a win. The next thing we know they gave him 10% for hep and 10% for Cirrhosis. The only problem is Rob is on the Last Roundup. He’s Stage 4 and on the border of decompensation. One can hardly say he’s 10% anything. He’s legitimately entitled to 100% for the Hep and whatever they feel ambivalent about handing him for the cirrhosis. VA will inevitably fight him over this for years until he dies in the traces.

For any of you who have run into this or have a VSO who wants to throw the book at VA on your claims, be sure to point this problem out. Forewarned is forearmed. I’m just sorry it took so long to find a way around it. VA has lots and lots of rules. So many, in fact, that they sometimes have one to argue for both sides of an argument. Here is the winner when they drag out the old pyramiding bullshit. As a last resort, I suppose you could respectfully decline to accept a rating for cirrhosis and ask them to politely remove it. I wonder how that would play out. This would then remove the perceived roadblock to a P&T for just the hep. Hell, if you die, it’s going to be due to the Hepatitis-period. The cirrhosis might be the actual killer, but it wouldn’t be an issue if not for the Hep. I don’t know if they are capable of mentally digesting that though.

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About asknod

VA claims blogger
This entry was posted in BvA Decisions, HCV Health, Medical News, Tips and Tricks, Uncategorized, Veterans Law and tagged , , , , , . Bookmark the permalink.

6 Responses to 38 CFR §4.16–A Window For HCV Vets

  1. Randy says:

    Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.

    While not exceptional or unusual, HCV is unforgiving. The additional medical problems associated with the HCV should in and of themselves be noted as related and that is fine but to offer 10-40% is unforgivable. We did not ask for this! All I can say is that with my back problems at 60% perhaps the VA will allow the unemployability issue, Film at 11:00.

    • asknod says:

      Go to the BVA decisions website, erase Hep. C and type in “extraschedular rating” and hit search. Tell me how many are winners. I published one (the first I’ve ever seen) several weeks ago.

      • Randy says:

        I follow your wisdom sensei and accept this as a baby step FORWARD. I hear through the grapevine that there will be a plethora of former Senators and Congressmen looking for substantial employment soon, perhaps they can pass their sense of doom off on those sitting at the table for the VJLA (I made this one up); the Veterans Justice League of America. I’ll shut up now my meds for curing my HCV are kicking in.

  2. SquidlyOne says:

    That’s an excellent blog for all of us Vets. I went through that statute several weeks ago before I put in for TDIU. They will try to water it down with 10s and 20s of various assundry ailments to keep you from that magic combined rating. At least that is what my VARO is trying to do. You get the 70 combined but they are careful not to give you the 40. You get the 40 and they lowball you on the combined so that you come up short of the 70%.

    Here is an example of what my VARO has for history of TDIU:

    http://www.va.gov/vetapp10/files3/1027075.txt

    Look closely how the judge interjects the concept of “subjective” to how an individual is employeable or not. Now all ratings are supposed to “compensate” the Vet according to his/her hindered ability to perform work. In other words I like the way this VLJ addressed the examiner’s shell game….

    • asknod says:

      I published this for the value of how the M-21 classifies a disease entity-i.e single disease process. That’s where the value lies. Other than that, TDIU is a chimera that can disappear in a heartbeat. Remember? VA says you get better after a while with HCV.

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