Do we Veterans really want lawyers – judges – driving wedges between us and our doctors?

If you are a Veteran with  service-connected diabetes, you are going to want to read this Court case.

Here’s where it starts.

As time passes, treatment of medical conditions changes – new technologies, new medicines, and new practices by doctors can greatly affect whether Veterans recover from – or are able to live and function with – their service-connected disabilities.

Unfortunately, the Veteran affairs diabetes guidelines don’t consider these new treatments when making determinations of the degree of a Veteran’s disability.

Let’s flesh out how that works by comparing the predicament of 2 very similarly situated Veterans:

Veteran #1.

• Served in the Republic of Vietnam, lost an arm at the Battle of Khe Sanh
• VA concedes Veteran was exposed to Agent Orange
• VA agreed  Veteran’s Type II Diabetes was caused by Agent Orange.
• The Veteran’s diabetes interferes with his ability to work.
• The Veteran’s diabetes is very severe: he has been hospitalized 3 times a year in each of the last 3 years for complications from the diabetes.  He  gets treatment at his local  VA Medical Center where he “treats” diabetes with regulation of activities,  a restricted diet and regularly takes insulin injections.

VA Determination: Veteran is 60% disabled, and VA should consider entitlement to Schedular TDIU with a 60% rating.

Veteran #2.

• Served in the Republic of Vietnam, lost an arm at the Battle of Khe Sanh
• VA concedes Veteran was exposed to Agent Orange
• VA agreed  Veteran’s Type II Diabetes was caused by Agent Orange.
• The Veteran’s diabetes interferes with his ability to work.
• The Veteran’s diabetes is very severe: he has been hospitalized 3 times a year in each of the last 3 years for complications from the diabetes.  He  gets treatment at his local  VA Medical Center where he “treats” diabetes with regulation of activities,  a restricted diet and regularly takes insulin injections.
•  HOWEVER, instead of getting routine insulin injections,  Veteran #2 takes a new drug called Byetta.  Byetta is an injectable drug that (over-simplified) helps the body produce more natural insulin.

VA Determination: Veteran is only 10% disabled, and for that reason, the VA won’t consider entitlement to Schedular TDIU .

Why do the Veteran Affairs diabetes guidelines treat these 2 Veterans so differently?

How is that 2 Veterans, equal in all regards, with unarguably severe diabetes resulting from the same incident in service, can be treated so differently?

Let’s take a look.

In August 2013, the Federal Circuit ruled in Middleton v. Shinseki, Cause No. 10-422 (August 15, 2013) that Veterans have to read VA regulations literally.

The Court’s decision seems to be saying: because a regulation (first written in 1981) said that injections of insulin are necessary to achieve a rating for diabetes above 10%, when a Veteran uses a pharmaceutical product that makes the body create more insulin, the Veteran’s disability rating is limited to 10%.

[Author Note: Technically, you can get a 20% impairment rating under DC 7913 if you are NOT getting insulin injections: you must be on a restricted diet and taking a hypoglycemic agent to treat your Type 2 Diabetes.  Thanks to reader Brian Kennedy for making sure I pointed out this important distinction!] 

I don’t mean to malign the Judges at the Federal Circuit.

To the contrary: Judges at the Federal Circuit are hyper-intelligent attorneys and very practiced judges.  I orally argued a case before the Federal Circuit a few years back, and it was one of the most challenging intellectual exercises I have every engaged in.

Moreover, this case could be seen as a “factual dispute” – and the Federal Circuit will not to rule on a case that even remotely approaches a factual determination or dispute. It’s not in their jurisdiction, and they are of course correct not to do so.

With the qualification that I don’t have access to the Record before the Court, I feel that something doesn’t make sense in this case.

Rather than looking at the issue as an erroneous interpretation of a law (applying statutory interpretation rules to the fairly narrow interpretation of a VA regulation), the Court seems to instead characterize the issue it as a factual dispute (whether insulin injections are the same as Byetta injections).

So as much as I think they might have reached a different outcome, they did not: the practical impact is that  Veterans now have  to figure out how to deal with a big dilemma.

In the case of Veteran #1 and #2 above, one Veteran has to forego as much as $900 in income by electing to use Byetta instead of getting insulin injections.   If a Veteran’s treating physician suggests that the Veteran use Byetta instead of getting insulin injections, the Veteran knows that they stand to lose compensation for their in-service disability to follow their treating physician’s recommended medical treatment.

For a community that often lives and dies from one benefits payment to the next, this a tough call.

I have no idea what the right call in that situation is.

So, here are a few options for those of you that find yourself in the same boat as Veteran #2:

Option #1: Get the Crony Capitalists to do the heavy-lifting.

Someone reach out and contact the K Street Gang that lobbies for pharmaceutical maker Bristol-Myers (maker of Byetta).

Let them know that the current Veteran Affairs diabetes guidelines  in 38 CFR Table 4 (Diagnostic Code 7913) creates a massive disincentive for Veterans who might want to try Byetta – and is hurting Bristol-Myers’ bottom line (because I’m sure that the VA is paying top dollar for new drugs like this).

Nothing moves Congress faster than the sound of “Cha-Ching” in the campaign coffers…so let’s get the manufacturer of Byetta to help “Cha-Ching” us dial up some favorable legislation.

 

 

Option #2: Forget about fighting for 60% under the Diabetes Diagnostic Code – go for 100% under “Bennett”.

We are going to talk about the Bennett case in a couple days, but it’s HUGE for Veterans in a TDIU claim.

It also has some applicability here, as I believe that it has given new life to the concept of extra-schedular IU.

If you are  in the same boat as Veteran #2 (severe diabetes that would qualify for a 40% rating or higher but for taking Byetta, plus inability to work due to your diabetes), get a copy of your C-File, and verify that you have evidence in the C-file alleging  your service-connected diabetes interferes with your ability to work.

Next, amend your current claim for increased rating for diabetes (or file one) to include a claim for Extra-Schedular TDIU under 38 CFR 4.16(b), and/or a claim for an extra-schedular (non-TDIU) 100% rating – and consider using the “Bennett Language” I have shared below:

Add this language:

In Bennett v. Shinseki, Vet.App. No. 12-0590 (Mem. Dec.) (July 2, 2013), the CAVC stated “[u]nder § 3.321(b) an extraschedular rating is available “in exceptional cases where the rating is inadequate.” Thun v. Peake, 22 Vet.App. 111, 114 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). To determine that an extraschedular referral is warranted, the Board and/or AOJ must determine that the schedular evaluation under which the claimant is rated does not contemplate the claimant’s level of disability and symptomatology, and that the claimant has an “exceptional disability picture exhibited by factors such as ‘marked interference with employment’ and ‘frequent periods of hospitalization.’ The Federal Circuit Court in Middleton v. Shinseki made it clear that Veterans who use Byetta to treat diabetes instead of insulin presents an exceptional disability picture that does not provide an adequate rating under 38 CFR Table 4.

CLEARLY, you have a unique disability picture  that is not envisioned by the current rating schedule for diabetes:  your condition is severe enough to warrant a 60% rating but for the fact that you are using modern treatment techniques not envisioned when these regs were written decades ago.  Couple that with an inability to work due to the diabetes (or the AGGREGATE impact of ALL your service-connected conditions), and you have the recipe for Extra-Schedular TDIU, according to the CAVC (non-precedential) holding in Bennett.

 

Confused by all the different paths to a 100% VA Disability Rating – maybe this will help clear up some confusion.

And tell me this – do you take Byetta for your diabetes?  If so, what impairment rating did the VA give you?