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leadbelly1981
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Posts posted by leadbelly1981
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6 hours ago, Navy4life said:
At minimum constipation is found in 2016 ICD - 10 – CM diagnostic code K59.00 constipation unspecified.
^^^^^
i would not out this in your NOD. your basis for this entire fight is the fact they should have awarded you in 2004. That there above indicates you could agree with a 2016 award thus losing any possible retro or SC to 2004!
just my .02
Navy4life
I'm sure the icd diagnostic books for 2003 Also have a diagnostic code for constipation unspecified I just haven't found it online yet but your point is well taken thank you
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40 minutes ago, Berta said:
Great.Thanks for clarifying that.
By ETS do you mean End of time in service?
Reason I ask is because if the 2004 claim was filed within that first year after service discharge date (it appears it was) then the EED would be the first day after your discharge ,if the CUE claim succeeds.
The c and p exam was in 2003 a few days before my enlistment was up or ets. The decision is dates Feb 2004. I reopened it on e benefits Sep 2015. I was just awarded 30 percent based on the DBQ from doctor Owens on Dec 7 2015. I want to get this claim back dated to the initial claim date which would be the when the va first received it in 2003 Or maybe their decision in 2004. I have little understanding of this process but in the denial in 2004 the rater said the physician stated I suffered from constipatiin, which is a symptom not a diagnosis. I believe this is a Colvin violation because the rater said constipation is a symptom not a diagnosis, which is not true. Also even with my smr history the rater should have applied 4.20 analogous ratings for my chronic constipation instead of denying. What is your opinion Berta? On sorry if I was unclear in earlier statements. I'm trying to present as clear of a picture as possible. Thank you.
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On 1/22/2016 at 3:43 PM, Navy4life said:
The letter you provided was a very good/solid one by your doctor who performed the C&P. I am sure it will help!
Berth thank you for your input. I ets in 2003. Above you can see the 2004 denial the 2015 c and p opinion and the 2016 decision.my computer is not letting me upload for some reason right now. Also the lawyer ants me to cue the 2004 decision.
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On 1/30/2016 at 10:00 AM, Navy4life said:
First congrats on the award! I too am 30% for IBS. it's a very difficult rating to obtain in my opinion.
i would consider a CUE based on the 2015 CnP stating that the error was clear that you should have been s/c back in 2004.
Just my two cents!
Navy4Life
hey thanks for your advice.
ok I talked to a Veterans law attorney today
He said I should file a CUE. I typed this up in the last hour. I know I will need to make changes
any and all input is greatly appreciated.
DEPARTMENT OF VETERANS AFFAIRS 2-1-2015
CLAIMS INTAKE CENTER
PO BOX 5235
JANESVILLE, WI 53547-5235
Notice of Disagreement
This notice of disagreement is being filed based on a CUE and a Colvin violation that resulted in the denial of service connection. The date of the rating decision is February 13, 2004. The condition that was denied in error is constipation (claimed as “bowel movement problems”). This condition later was service connected at 30% as irritable bowel syndrome with chronic constipation, with an effective date of September 22, 2015. The effective date of service connection should be February 13, 2004, listed on the following page is the legal reasoning. Thank you for reviewing this matter.
Veteran
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The evidence in SMR clearly shows that while in the service I suffered from constipation.
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The evidence in SMR also shows a diagnosis of chronic constipation on 5/31/01.
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The evidence in SMR also notes on 8/26/03 Constant problems with constipation for the past two and a half years.
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During the Compensation and Pension exam, dated November 17, 2003 the physician concluded that I suffered from suffered from constipation.
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The wording in the rating decision dated February 13, 2004 states:
We are unable to grant you service connection for constipation (claimed as “bowel movement problems”) because the evidence fails to show a medically diagnosable condition was incurred or aggravated by active duty. The SMRs show that a health care practitioner treated you for “probable constipation” in January 2001; no professional rendered a medical diagnosis. According to the evidence you did not obtain medical treatment for a chronic condition thereafter. During the C and P exam, the doctor noted normal bowel sounds. There was no tenderness to palpitation, heptosplenogaly or guarding. The physician concluded that you suffered from “constipation”, which is a symptom not a medical diagnosis. We can revisit this issue if you provide credible objective medical evidence showing a chronic medical condition that was incurred or aggravated during military service.
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Please reference the sentence found above in the reasoning for denial of service connection that is bold and underlined. This sentence explains that the physician concluded that I suffered from constipation, which is true. This sentence also states that “constipation” is a symptom not a medical diagnosis. That part of the statement is entirely not true and is a Colvin violation. At minimum constipation is found in 2016 ICD - 10 – CM diagnostic code K59.00 constipation unspecified. A Colvin violation is Cleary present in the reasoning of denial of service connection.
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The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.
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Please reference number two above I was diagnosed chronic constipation ICD code: 564.00 on 5/31/01. This is also stated in my SMR.
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Under 38 CFR 4.20 it states: 38 CFR § 4.20 Analogous ratings.
When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.
Under the law, 38 CFR 4.20 Analogous ratings my claim for constipation (claimed as “bowel movement problems”) I should have been granted service connection February 13, 2004 based on the evidence which was available at the time, and is listed above for your review.
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Dr. Owens a VA Medical doctor specializing in Gastroenterology medically opined at a C and P dated December 7, 2015 “In my medical opinion his prior denial of service connected status on 2/13/04 was in error in not recognizing that his medical condition, present since 5/31/01, is irritable bowel syndrome, constipation predominant”.
this is as far as I have got.
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I received my decision an award of 30 percent. I am posting a picture that includes the exact wording of the 2004 denial the 2015 c and p opinion and the 2016 decision. In the evidence for the current decision they did not list anything for the 2003 c and p exam. Getting m ibs backdated to 2003 when I first submitted the claim would bring about 60k in retro as I had a 50 rating from 2004 to 2013 and now after current award went from 60 to 70 . Any and all help is greatly appreciated. I'm considering hiring an attorney to fight for an earlier eed.
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3 hours ago, leadbelly1981 said:
One question I have is , is this not enough to get the VA to reverse their decision or at least sc me for the New diagnosis?
In my opinion as a gastroenterologists, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recoginizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant.
The next issue I'm wondering about now that I'm seeing how complex this whole process is.
When I filed it was in 2003. Prior to my ets. I received the denial in early 2004. Ok that is straight forward. 9/ 22/ 2015. I click re open on e benefits because I still have the same issue but worse so I tried again. In all my reading the va doesn't re open claims that are outside the appeal process by more than a year without new and material evidence. Now I'm worried wondering what is going on. I never submitted new evidence. I got a call and went to the c and p exam that's it.
This is literally all I have done.
1. Click reopen and submit on e benefits.
2. Go to mymy c and p as scheduled.
3. Request DBQ from SF VA release of iinformation Office.
Is there something I'm missing.
When I clicked reopen I e benefits did someone look at my c file the old decision and schedule the c and p for a particular reason. Did they realize a overlooked and?
I feel lost on this. Berta thank you for your knowledge does the va send vets to c and p on a re open with the vet not submitting new material evidence?
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On 1/20/2016 at 7:53 AM, Berta said:
I feel a CUE for a better EED might be very difficult.
because CUE is like the Watergate question...what did they know and when did they know it?
VA knew you claimed constipation in the earlier decision and the claim was not for IBS.
BUT, then again I was awarded for my husband's IHD (AO) as well as DMII (AO) which were Never diagnosed or treated by VA the entire time he was a VA patient.
He never claimed those disabilities because he didn't know he had them,when the medical evidence clearly revealed he did,along with his VA employee physicals and the regular medical appointments he got as a a disabled veteran.
The IHD claim was a CUE and the DMII claim was a straightforward direct SC claim, that I had 3 IMOs for.
The medical evidence in each above case revealed symptoms of both conditions that progressively got so bad (due to no diagnosis or treatment) that they both, per VA, contributed to my husband's untimely death.
The decision you get (soon I hope) will tell you more, and I also ask if you are a GWV, in country,
due to the presumptive GWV regulations regarding IBS.
You certainly need all of your STRs and VA medical records to see if they reveal that a diagnosis of IBS could have or should been made sooner.That could possible garner a CUE claim basis or maybe even an 1151 basis.
I assume VA has not questioned the chronicity of this problem.
Are they aware of, and did they obtain, any private medical treatment records you had for this condition?
One question I have is , is this not enough to get the VA to reverse their decision or at least sc me for the New diagnosis?
In my opinion as a gastroenterologists, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recoginizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant.
The next issue I'm wondering about now that I'm seeing how complex this whole process is.
When I filed it was in 2003. Prior to my ets. I received the denial in early 2004. Ok that is straight forward. 9/ 22/ 2015. I click re open on e benefits because I still have the same issue but worse so I tried again. In all my reading the va doesn't re open claims that are outside the appeal process by more than a year without new and material evidence. Now I'm worried wondering what is going on. I never submitted new evidence. I got a call and went to the c and p exam that's it.
This is literally all I have done.
1. Click reopen and submit on e benefits.
2. Go to mymy c and p as scheduled.
3. Request DBQ from SF VA release of iinformation Office.
Is there something I'm missing.
When I clicked reopen I e benefits did someone look at my c file the old decision and schedule the c and p for a particular reason. Did they realize a overlooked and?
I feel lost on this. Berta thank you for your knowledge does the va send vets to c and p on a re open with the vet not submitting new material evidence?
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One question I have is , is this not enough to get the VA to reverse their decision or at least sc me for the New diagnosis?
In my opinion as a gastroenterologists, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recoginizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant.
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On 1/20/2016 at 5:32 PM, flores97 said:
Leadbelly, I really think you have a strong case here. I'm hoping Mrs Berta can look at this, maybe try sending a private message to Tbird. The c&p doctor stated THE VA WAS IN ERROR, essentially. Fight for that EED, the other members all had great advice but when the doc himself states that an error was made, i dont see how VA can effectively argue with that. It might be worth having an experienced VA attorney look it over, keep in mind i am far from an expert but it cant hurt to try, and Good Luck!
Yes he directly said in the comments section of the DBQ.
In my opinion as a gastroenterologists, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recoginizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant.
I don't know how he could have helped my case anymore ? He definitely advocated for me.
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Hi everyone
Claim moved to pending decision approval today. Thank you so much for the input. My two duty stations were Fort hood and camp casey South korea. My ETS was Nov 2003. Unfortunately I dont have anything else to share right now . I do feel that the DBQ that the c and p doctor filled out lines up with 30 percent. I did not give va any health records. All they have is my smr and va clinic records. Thank you for your advice and support. Is there anything else I should do right now the estimated completion was March 16 Last night now today it is Jan 29.
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The claim is preparation for decision now for the last week nothing else to report at this time.
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Is the whole site really shut down in error. Anyone else getting this. I cant access any information on here. Everything I try to opens reports as an error for the last 24 hours.
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Under evidence for the 2004 rating decision it list
C and P exam dated November 17, 2003
I request my records and when they arrived there is not a c and p exam record included but
In reading the decision closer I do notice that it states,
Rating Decision 2004
Service connection for constipation claimed as bowel movement problems.
We are unable to grant service connection for constipation claimed as bowel movement problems because the evidence fails to show a medically diagnosable condition was incurred or aggravated by active duty. The service medical records show a health care practitioner treated you for probable constipation in January 2001, however no professional rendered a medical diagnosis. according to the evidence you did not obtain treatment for a chronic condition thereafter. During the c and p exam the doctor noted normal bowel sounds there was no tenderness to palpitation, heptosplenogalyy or guarding. The physician concluded you suffered from "constipation", which is a symptom and not a medical diagnosis. We can revisit this issue if you provide crediable objective medical evidence showing a chronic medical condition was incurred or aggravated during military service.
The physician concluded that you suffered from " Constipation" , which is a symptom and not a medical diagnosis.
The way that this is written really sounds like the Physician stated in his notes that I suffered from "constipation" . Pretty straight forward, and that the rater stated "which is a symptom and not a medical diagnosis". Why would a C and P Doctor state that I suffered from constipation which is a symptom not a diagnosis? Wouldn't that be an incomplete exam rendering no real finding? Basically like saying hey he suffers from constipation which is a symptom of something but ill let you guess what it is? It just doesn't seem like something a doctor would put in his report. I could see a Doctor stating, the veteran suffers from constipation further tests are required, or just simply stating that I suffer from constipation. I cant really see a doctor stating the veteran suffers from constipation which is a symptom not a diagnosis. At least not on a c and p exam which its purpose is to render a medical opinion. Anyone agree that this is does not fall in line with a medical opinion?
The physician concluded that you suffered from " Constipation" , which is a symptom and not a medical diagnosis.
- Vync I really think you nailed it with If the doctor said this, then they obviously don't understand § 4.20 (see below). If the rater said this, then they obviously don't understand § 4.20 (see below) and it could also be what is called a Colvin violation (unqualified person incorrectly tries to interpret a medical data on their own).
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Another thing I have noticed is that at the top of my 2015 c and p questioneer the doctor states under diagnosis that I was diagnosed constipation chronic in 2001.
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When I was seen for my c and p exam in 2003 it was while I was stationed at camp Casey south Korea. I requested all my records c file and received them. There are no notes from my c and p that I can find. I do remember telling the doctor I have constant constipation for the last 2 plus years with relief only after laxatives.
In My 2015 c and p exam the doctor looked thru all of my records right there with me he had access on his computer. This is how he developed his opinion.
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ok here is the exact wording in my rating decision in 2004 also following this Is information from the c and p I was at this month in 2015
Rating Decision 2004
Service connection for constipation claimed as bowel movement problems.
We are unable to grant service connection for constipation claimed as bowel movement problems because the evidence fails to show a medically diagnosable condition was incurred or aggravated by active duty. The service medical records show a health care practitioner treated you for probable constipation in January 2001, however no professional rendered a medical diagnosis. according to the evidence you did not obtain treatment for a chronic condition thereafter. During the c and p exam the doctor noted normal bowel sounds there was no tenderness to palpitation, heptosplenogalyy or guarding. the physician concluded you suffered from constipation, which is a symptom and not a medical diagnosis. we can revisit this issue if you provide crediable objective medical evidence showing a chronic medical condition was incurred or aggravated during military service.
compensation and pension dec 7 2015
was the veterans claim file reviewed
yes
1. diagnosis
does the veteran now have or ever been diagnosed with a intestional condition
yes
ibs 564.1 12/7/2015
chronic constipation 564.0 5/31/01
describe history of veterans intestinal condition
Mr. B was in the army from 2000 to 2003. his service medical records show that he was seen on 5/31/01complaining of stomach pain due to lack of bowel movement for several days. he was treated with kolace and fiber supplement. prior to his discharge from the army his smr notes on 8/26/03 constant problems with constipation for the past two and a half years. I use a tea called smooth move and other laxatives. stool is covered in mucus if not producing one for a few days.
when he was first seen at the sr va clinic he on 4/1/09 his record notes chronic constipation patient gives 10 year history of constipation only producing small round hard stools 2 to 3 times a week only after taking laxatives. patient has used daily supplimental fiber without improvement in symptoms.
at present he follows a high fiber diet and tries to manage his chronic abdominal bloating and constipation on his own. he drinks coffee in the morning and then works to stay hydrated through out the day. he carries a bottle of water with him at all times. he tries to move his bowels 2 to 3 times a day there are times where he doesnt have a movement for a week. he has movements mixed with mucus and blood. stool is usually in round hard balls.
is continuous medication required for control of condition
yes
has the veteran has surgical treatment
no
does the veteran have any signs or symptoms attributable to any non surgical no infectious intestinal condition
yes
has chronic abdominal distention, relieved temporaily by bowel movement. he feels irritable when bloated and cannot eat. he has to wear his pants below his bloated abdomen or his pants would be to comfortable.
nausea
he gets nausated if he hasnt had a movement for a couple days. he also gets nausated when bearing down trying to have a movement.
does the veteran have episodes of bowel disturbance of with abdominal destress
yes
episodes of bowel disturbance with abdominal distress
more or less constant abdominal distress
weight loss
no
malnutrition
no
remarks
In my opinion as a gastroenterologist, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recognizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant.
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Vync
Thank you very much for you insight. I have another question. When is the correct time to do the CUE. On e benefits the claim is in gathering of evidence stage. Is this somthing I do immediately or do I wait to get the decission and if the decission is not favorable then file a nod stating that there is a CUE?
Of course I'll be posting the exact wording of 2004 decission tonight as well.
Thanks again
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Thank you very much. So basically they should have rated me in 2004 and instead denied me. So I will look at my decision from 2004 and post the exact content of that tonight when I'm home.
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So how much weight does the VA Give their own GI doctors opinion that the error was in not diagnosing me in the army and him stating my condition was ibs since 2001? Should the benefit of doubt not lean my way seeing the VA made a decision without a diagnosis, that is what this doctor is stating.
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I feel that at this point it is wait and see what the RO decides. If the reverse the denial it will result in back pay. I was rated at 50 from 2004 to 2013 and 60 from 2013 till now. The disability questioneer is filled out to result in an additional 30 percent rating.
Anything else I should do? Thanks for all the input everyone.
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I don't know if any doctor could make a better argument on my behalf. This doctor totally advocated for me at least that is how I feel.
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Have you got copies of your original medical records from active duty? You should be able to get them and see what the actual diagnosis was while you were in service.
If there is none, you need a GI doc to give you a nexus letter stating that it is more likely than not that the constipation you had in service is more likely than not a symptom of a specific problem (IBS) that you have today. Study up on Nexus letters from the internet and on hadit.com so that you can get a full understanding what the Nexus letter needs for you to win a claim.
To get this backdated, you have to ID an error in the original ruling, a mistake maybe that they made like failure to diagnose based on the symptoms at that time. Constipation is not always caused by IBS, so that's another reason why you need to get your SMR's from your active duty stint. Get registered on EBenefits and you should be able to get the records
First off thank you for your response. I do have my medical records. No diagnosis in service only complaints of bouts of constipation. My question at this point is if the GI Doctor who conducted my c and p stated everything you say I need in a nexus letter already in the disability questioneer then do I need another nexus letter?
This is what he said.
In my opinion as a gastroenterologists, mr. B 's condition of abdominal bloating and chronic constipation represents irritable bowel syndrome, constipation predominate. It is more likely than not this this is the same condition for which he was seen in the army on these dates. His complaint was never properly evaluated by the army prior to his discharge on. this condition has been continuously present by history and has been documented to present in va records at least since presentation to the sr va in 2009. In my opinion his prior denial of va service connected status was in error in not recoginizing that his medical condition present since 2001 , is irritable bowel syndrome, constipation predominant. -
constipation claim, ibs ?
in Veterans Compensation & Pension Exams
Posted
The claim was filed Nov 17 2003 2 days before my eta. Thank you for your input.