I just entered the IDES process due to Remicade and Imuran treatment for a recent severe ulcerative colitis flare that hospitalized me for 12 days. The Air Force has been doing annual RILO's on me for the last 7 years and until now, I was getting returned to duty with a C-2 limitation code. This disease is like a roller coaster - I'm doing fine for a while and then, out of the blue, I'm admitted to the hospital and in the worst pain of my life. My blood works starting to return to normal thanks to these new meds and the Doc and I think they will put me into remission for an undetermined amount of time.
Now to my main concern, I'm guessing that I will be mostly symptom free during my upcoming C&P Exam due to these powerful medicines. In the future, if I'm placed on the TDRL, It's possible that I would be symptom free during one of my follow up exams as well. I'm concerned that they will deny me at least 30% because my records show that my disease was under decent control for the past few years. I've read on here that they will only consider my current health status the day of my exams, but I did some research below that contradicts this. Considering the cases below, does this prove that if the code for UC (DC 7323) does not mention the relieving effects of medication (it doesn't), then they will not rate my condition based on the relief I get from this medication? Will the VA examiners take into consideration that I've been in a severe flare 2 months prior to my C&P Exam, even if I show up in fair condition?
Referencing Otero-Castro, 16 Vet.App. at 382. “if the Secretary wishes to establish a DC [diagnostic code] containing [specific] criteria for a . . . rating, it is his obligation to do so clearly, not ambiguously.”
Indeed, in Otero-Castro, the Court held that “the Board’s consideration of factors outside the rating criteria ([including] relief with rest and medication) could not be a basis for denial of a 60% rating.”
Referencing Massey and Drosky, "Therefore, as DC 7319 is silent as to the effects of medication, the Board erred in denying entitlement to a higher disability rating based on the relief provided by the appellant’s anti-acid medication."
PS: I'm just trying to prepare for the worst outcome (10% DOD), would it be helpful during an appeal to cite cases like above that are similar to my own case? I actually believe I meet all the 60% criteria under the ulcerative colitis code 7323 (Severe; with numerous attacks a year and malnutrition, the health only fair during remissions). Realistically, I'm expecting a 30% DOD rating, because they could argue that my health is better than "fair" during remission. The problem is "fair" is subjective. My records show chronic Vit D deficiency, chronic anemia, chronic inflammation, joint pain, immune suppressed for life due to required medicines and I'm not able to vaccinate. Do you think it's worth an appeal if it comes down to it, or should I just take the 30%?
Now to my main concern, I'm guessing that I will be mostly symptom free during my upcoming C&P Exam due to these powerful medicines. In the future, if I'm placed on the TDRL, It's possible that I would be symptom free during one of my follow up exams as well. I'm concerned that they will deny me at least 30% because my records show that my disease was under decent control for the past few years. I've read on here that they will only consider my current health status the day of my exams, but I did some research below that contradicts this. Considering the cases below, does this prove that if the code for UC (DC 7323) does not mention the relieving effects of medication (it doesn't), then they will not rate my condition based on the relief I get from this medication? Will the VA examiners take into consideration that I've been in a severe flare 2 months prior to my C&P Exam, even if I show up in fair condition?
Referencing Otero-Castro, 16 Vet.App. at 382. “if the Secretary wishes to establish a DC [diagnostic code] containing [specific] criteria for a . . . rating, it is his obligation to do so clearly, not ambiguously.”
Indeed, in Otero-Castro, the Court held that “the Board’s consideration of factors outside the rating criteria ([including] relief with rest and medication) could not be a basis for denial of a 60% rating.”
Referencing Massey and Drosky, "Therefore, as DC 7319 is silent as to the effects of medication, the Board erred in denying entitlement to a higher disability rating based on the relief provided by the appellant’s anti-acid medication."
PS: I'm just trying to prepare for the worst outcome (10% DOD), would it be helpful during an appeal to cite cases like above that are similar to my own case? I actually believe I meet all the 60% criteria under the ulcerative colitis code 7323 (Severe; with numerous attacks a year and malnutrition, the health only fair during remissions). Realistically, I'm expecting a 30% DOD rating, because they could argue that my health is better than "fair" during remission. The problem is "fair" is subjective. My records show chronic Vit D deficiency, chronic anemia, chronic inflammation, joint pain, immune suppressed for life due to required medicines and I'm not able to vaccinate. Do you think it's worth an appeal if it comes down to it, or should I just take the 30%?
