"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Tuesday, November 23, 2010

Tatum: Convalescent Evaluations

Tatum: Convalescent Evaluations

The decision in Willie E. Tatum v. Eric K. Shinkseki, Opinion Number 08-3782, decided November 3, 2010, involved the scheduler rating for convalescence after surgery for prostate cancer, DC 7528.

The case involved the proper rating for prostate cancer under Diagnostic Code 7528. The DC requires a 100% rating that continues for a minimum of 6 months from the time of treatment (i.e., surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure). The note to the code states any change in evaluation shall be subject to notice provisions.

Service connection was granted after surgery and staged to give a 100% rating for 6 months and a 0% rating by the VARO which was increased to a 10% rating by the BVA. The veteran argued he should have been given notice under section 3.105(e)before the reduction to 0% or 10% and as a result he was entitled to a 100% rating until the time of the appeal. The Court rejected this argument and said the plain meaning of the regulations was that when a claimant is currently in receipt of a convalescent evaluation under DC 7528, a six month mandatory medical evaluation and 3.105(e) notice must be provided before reduction of the convalescent evaluation. But, that when the award is made after the convalescent period, it is appropriate for the award to be staged and then additional 3.105(e) notice is not required.

Additionally, the Secretary conceded that BVA did not adequately address (1) the actual date of the cessation of the veteran’s treatment and (2) whether the veteran suffered a local reoccurrence or metastasis. Importantly, the 100% rating continues for at least 6 months after the date of cessation of treatment.

The decision is a good example of staging and as well as the VA’s failure to fully address all the evidence in a case.

Decided by C.J. Kasold, and J. Davis and Schoelen.

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