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About kansasvet2@yahoo.com

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    E-2 Recruit
  • Birthday August 10

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    1725 Gage Blvd, Topeka, KS

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  • Service Connected Disability
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    A.S. Army
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  1. Well you need to do a good NOD much like the one in the NGWRC's guide. Example Notice of Disagreement (NOD) These examples are not on the new form that the VBA wants them on. This is only the narrative part of the NOD form. While the NOD form has room for a veteran to place a number id items on it, I would not advice it. You can add sheets of paper to the form, you have to make sure to have all of your claim information on each one, number them and dated and sign them. When I am not doing 40 things at the same time I will try and do one. These are only example and should not be used as your NOD, you claim will be different this is only for educational determinations only. Do not send these in as you, but do show your VSO them along with anything else in this guide so you two can work on your NOD. The record does clearly show that (VETERAN) was diagnosed with (CMI) on DATE by (PCP). SEE attached copy. The rater did not apply the laws and regulation for presumptive illness for (CMI) under U.S.C title 38 Section 1117 as pasted by congress in 2001 and as in CFR 38 section 3.317 (a)(2)(B) (list part for CMI). The rater created on error by asking for and or relying on any type of medical opinion of a nexus that relates this diagnosed (CMI) to service in the gulf war. M21-1MR.IV.ii2.D14 and SEE 2004 Gutierrez v. Principi. In addition, the veteran does not have to prove any link to any of the exposure, that claimant had during the war as the examiner was looking for. (SEE 2004 Gutierrez v. Principi). The examiner did not follow the guidelines on doing Gulf War exams making this an inadequate exam. If he had, the examiner would not have made the nexus statement. SAMPLE Remember To Use VA Form 21-0958 Both the DBQ and my medical records clearly show that I am diagnosed with Fibromyalgia and have been since 2003. My records on file does show my doctor did all of the proper tests and medical history to rule out other causes as per the guide line. My records do show that I am on medication and I am still in pain most all of the time. The rating specialist and the examiner failed to use my statement in how my symptoms are or how they affect my life as outlined in 38 CFR § 3.317, M21-1MR.IV.ii.1.E.19 and Gutierrez v. Principi, (2004). As a Gulf War vet, my Fibromyalgia is a presumptive illness to my service as per 38 U.S.C § 1117 enacted in March 2002 and 38 CFR § 3.317(a)(2)(i)(B)(2) Fibromyalgia. It is presumptive illness and does not need a nexus to the service as by applying the presumption of service connection afforded to veterans of service in the Persian Gulf under 38 U.S.C. § 1117(a), 38 C.F.R. § 3.317, and Gutierrez v. Principi, (2004) and your own M21-1MR. The rating specialist was in error in asking if my Fibromyalgia was caused by my exposures in the gulf war as Fibromyalgia is listed in 38 CFR § 3.317(a)(2)(i)(B) as a medically unexplained chronic multisymptom illness. The examiner cannot tell without speculating what did cause or what did not cause my fibromyalgia. As per Gutierrez v. Principi,(2004) a veteran is presumed exposed and I does not have to prove the exposure or cause of a medically unexplained chronic multisymptom illness. As the notice state the examiner is only to give an opinion on outcomes 3 & 4, and Not 1 or 2. Fibromyalgia is defined in 38 CFR § 3.317(a)(2)(i)(B) as a medically unexplained chronic multisymptom illness and meeting (2) in the notice. Had the rating specialist then follow the M21-1MR, Part IV.ii.2.D.i –“Rating Action Taken Based on Disability Pattern Determination” my claim would have been done as it states, “Grant service connection-”. As the DBQ clearly shows I am on pain over ¾ of the time and refractory to therapy. That as per the rating guidelines I have met the 40% rating. I ask that you grant me my claim and rate me 40% under DC 5025 as per section 3.317. If not I request an in person DRO hearing for all issues on appeal. Example to reopen due to a CUE This is based on a case where a veteran tried to reopen a claim that was denied in 1999. It was rightfully denied as the veteran had a diagnosed illness of IBS. As per the intent of congress letter and the OGC the veteran claim could not be claimed under 3.317, and the veteran did not have any symptom in service. After the law change took effect in March 2002 the veteran refiled due to the new law. The claim was denied stating the veteran did not have new and material evident. The VSO did not advice an appeal on the new presumptive law a sound means for the appeal. IBS CUE I would like to have my claim for my IBS that was file as due to gulf war illness under section 3.317 reopened due to the clear and unmistakable errors made by the adjudicator. The adjudicator, in my decision did not address the presumption of the illness for IBS as it is found in 38 U.S.C. 1117(a)(2) (B) and the Court's holding in Gutierrez v. Principi, (2004). Instead, the adjudicator erred by only on a nexus statement to if my IBS started in the service. IBS is a presumptive illness in CFR 38 section 3.317 (a)(2)(B)(3) Functional gastrointestinal disorders (FGID). The presumptive date is December 31, 2016 for the signs to manifest. IBS does not have to be in the veterans’ service records as the examiner was looking for. In addition, the veteran does not have to prove any link to any of the exposure, that claimant had during the war as the examiner. (SEE 2004 Gutierrez v. Principi) As my statement over the years to my doctor’s show I have met the 30% rating. As the adjudicator failed to apply the law in my case right, and he failed in giving me a proper statement of the case so that I could defend my case with. I am entitled to have my claim reopened due to these clear and unmistakable errors. My record shows I was Dx with Fibromyalgia as lease as far back as June 2003 and was on medication. SEE doctor statement of the record in my claims file that was turned in when I first filed. This denial is in error, as it still is not taking into account the fact that my Fibromyalgia is a presumptive illness as per U.S.C title 38 Section 1117 as pasted by congress in 2001 and as in CFR 38 section 3.317 (a)(2)(B)(2) Fibromyalgia. The rating specialist erred by asking for and or relying on the medical opinion that would relate Fibromyalgia did not start in the service. Also it shows the examiner did not have my C-file so there is no way he can even tell what is in my records of no symptoms in STR. As per the regulation on presumptive illness, this factor does not have to be met. The rater did not follow the M21-1MR, Part IV, Subpart ii, Chapter 2, Section D- 14 on granting a claim under 3.317, where it states if the veterans has the illness to grant the claim. A rating is based on the record as a whole and is one was not. The evident clearly show that I am on medication for treatment of my fibromyalgia since June 2003. The complete record shows that my doctor has changed medications a few times, but the treatment is not helping. As per the Fibromyalgia rating code DC 5025 and as my records clearly does show that the medications are changed (and refractory to therapy) and I am in constant pain thus I have met the 40% rating level. Enclose with the NOD, doctor statements of DX, BDQ, treatment records showing medication for the treatment and changing it. Always ask for a DRO personal hearing. You and your VSO need to be ready for these hearings and set up for them. Here is a sample of how to do that for your VSO. Questions for a DRO during a hearing on Fibromyalgia Ask the DRO if Fibromyalgia is one of the listed medically unexplained chronic multisymptom illness in 38 CFR 3.317(a)(2)(B)(2) Then ask for the end date. Make sure the DRO officer looks up that section and answer the question yes. If they are not able to look this up in reply to the questions in them that section of law. Also, give them to the section of the M21-1MR, Part IV, Subpart ii, 2.D.14.h. Manual showing the presumptive end-date. Does the record reflex the fact that the veteran has a diagnosis (DX) for Fibromyalgia? (The C-file should be at the hearing, I was at one where it was not.) Make sure the DRO officer looks it up and give the date when vet was first DX. Not just the DBQ from the C&P exam. Have the date stamp copy ready if need it is need to show that it was DX before the C&P. If the C&P exam did not agree with the Vets doctor point out ask why? Remember a DX by a doctor doing all test is right DX, a rheumatologist is the expert for diagnosing this illness. Does the DBQ show that the veteran’s Fibromyalgia is refractory to therapy? Make sure they look on the record for the DBQ and answer the question correct. You need to be looking at your copy to insure of the answer are stated the same. You need to highlight the important parts of the DBQ as there might be a secondary you can go for. Under diagnostic code, 5025 Fibromyalgia, when a veteran is diagnosed and still have the pain most of the time and is refractory to therapy, what rating percentage would the VA assign? The answer is 40% if they say they do not know give them a copy of the DC5025. Be sure to show them the rating guideline for the diagnostic code with the answer highlighted and marked off. Make sure they do date stamp this copy and give you copy back. Have on it how the veteran did meet all regulations for the 40%, veteran’s information too. Ask the DRO what the rating officer action is to do as outlined in the M21-1MR, Part IV, Subpart ii, Chapter 2, Section D.14.i Rating Action Taken Based on Disability Pattern Determination. It answer is to grant the claim. Give the DRO a copy with fibromyalgia written there. That the veterans claim should have been granted. Ask the DRO what the Notice to the Examiner states. Ask them under what terms does the examiner is to give a medical opinion, with supporting rational, as to whether it is “at least as likely as not” that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. This is only for (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. THIS IS NOT for undiagnosed or medically unexplained chronic multi-symptom illness of unknown etiology. Give them a copy of the M21-1MR. Summary for the DRO officer Today we have agreed that the claimant was diagnosed with fibromyalgia. That the records does show the symptoms for more than six months and that DBQ from the C&P exam shows the veterans diagnosis that the veteran is refractory to therapy. The DBQ clearly shows that the veteran is in near constant pain from as fibromyalgia. The DRO read from the 38 CFR 3.317(a)(2)(B)(2)Fibromyalgia medically unexplained chronic multi-symptom illness of unknown etiology and that is a presumptive illness to VETRAN Service in the gulf war. SEE 2004 Gutierrez v. Principi, M21-1MR And as we agree, the M21-1MR, Part IV, Subpart ii, Chapter 2, Section D.14.i Rating Action Taken Based on Disability Pattern Determination does clearly shows that the VBA is to grant the claim when a VETRAN as this diagnosis. And as we are both agreed in this meeting of the record that the veteran has not only met a requirement to be granted his claim under this law that the VETRAN has also met the 40% rating requirement under diagnostic code, 5025 Fibromyalgia. As there is no doubt the veteran has proven his claim we ask for his rating be set at this time. The record is clear and the points are agreed too with that the veterans effected date should also be the date he filed this claim. We ask that you now grant this claim at 40% and we will move on to the next issue on appeal. Note to remember!!!!!!!! Look for headaches secondary to FM. You will need a nexus from a doctor before you file the claim. Best to do this after the FM claim is done unless you have the headache claim going. Then you will need to state it as a posable cause Your appeal will not work if you have these issues. When you cannot file a claim under CFR section 3.317 Undiagnosed Illness (UI). These are only a few examples that we have come across over the years. There may be more. fatigue There can be a number of causes responsible for your fatigue. Once the doctors have stated that one or a number of them are the cause a claim under UI will be denied. There can be hope in some cases as the doctor will need to do test for something, others can be treated and then ruled out. I was told 4 times mine was due to sleep apnea, tested for it and I still do not have sleep apnea. So insist on the testing. Here are some of the cause veterans will see as for their fatigue. Type 2 diabetes, PTSD, TBI, Depression, Sleep Apnea, Medications, such as antihistamines, cough medicines and cold remedies, Alcohol use or abuse, Inactivity, Lack of sleep To see more causes of: http://www.mayoclinic.org/symptoms/fatigue/basics/causes/sym-20050894 •Gastrointestinal signs or symptoms You cannot ( well you can; but it will be denied as a presumptive) claim this like GERD, Hiatal Hernia, Barrett’s Esophagus, ulcerative colitis and Crohn's disease There can be some things responsible for your symptoms and once the doctors have stated that one of them is a claim under UI will be denied. These illnesses need to be a structural or biochemical abnormality for the VA to deny the claim. The differential diagnosis of dyspepsia includes: acid-related disorders such as gastroesophageal reflux disease (GERD) and peptic ulcer disease (PUD); gastric inflammatory conditions such as helicobacter pylori gastritis or nonsteroidal anti-inflammatory drug (NSAID) related erosions or gastropathy; and less common but still possible upper abdominal cancer (e.g., gastric, esophageal, pancreatic tumors). The doctors are using an outdated means to diagnose GERD based on symptoms only. This means one cannot tell if you have a FGID or if you have GERD. The NGWRC presented this problem to the VACO starting in 2013. They should it to the VBA HQ in August of 2014. You need to have a proper test and any exam short of it is inadequate. A veteran needs to fight their claim on those line. Typically, this means the patient had a negative medical workup that included, at a minimum, an esophagogastrodudenoscopy (EGD), 24-hour esophageal pH monitoring, and H. Pylori assessment. This way, possible structural or acid-related causes for the patient's symptoms have been sufficiently ruled out. In the absence of specific structural (morphological) findings, FD is defined and diagnosed based on the clinical presentation. Symptom-based diagnostic criteria for FD were recently developed by a multinational working team known as the "Rome criteria". • Headache most headaches are getting diagnosed as tension or migraine type. The BVA has not allowed claim as of late on a presumptive bases when you have a diagnoses. As the tension headaches can be a secondary to you pain and stress you might want to look at getting a doctor doing a nexus for that. There has been some studies that show fibromyalgia does cause both migraine and tension headaches. You would need to have a doctor nexus first. • Neuropsychological signs or symptoms Symptoms may include: Distractibility Difficulty with concentration and focus Short term memory loss Procrastination Problems organizing ideas and belongings Tardiness Impulsivity Weak planning and execution There can be many things that you can get diagnosed for that this is a part of. Once a doctors places it in your medical record a claim under UI will be denied. Here are some of the diagnoses that will cause a denial. PTSD, Depression, TBI, Dementia, Multiple Sclerosis (MS), Stroke/cerebrovascular accidents. • Sleep disturbances Sleep apnea is not a presumptive illness to the gulf war and a claim filed under this section will be denied. If you have SA you will need to prove a nexus to your serve or a secondary. There are also many thing that can also be blamed as the cause of your sleep problem that the VA is finding over the years. Add to this the fact you have to show it to be 10% disabling you have a claim that is very hard to get approved. Some of the things the VA will say is the cause of your sleep disturbance, any diagnosed mental health issues, pain and medication. If they say you have a diagnosed sleep problem due to medications or that is for something you are rated for, you then file it as a secondary. As you can see many diagnosed illness might rule out a claim of UI, that is if the symptom of the two are the same. We showed in in a different part of this guide about how the symptoms of CFS and fibromyalgia can cover many of the UI symptoms. TBI is the same and adding in the side effects of many of the medications the VA does use on use as per the 2005 VA study that is found on our website.
  2. They cannot link them as being caused by any other illness. They CMI has no known cause, and if anyone is to say it is cause by something else, there is no studies do prove it.
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