Dro Denial Received

[jmlo]

My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records. Also, he got out of the service in 98 and the fibro wasn't diagnosed until 2005. He is a gulf war veteran and served during the Southwest Asia Theatre. Wouldn't the service connection be granted under the presumptive period?

Where do we go from here? I really don't want him to have to wait years for the BVA. The RO said that we could request a hearing. Should he do that? Will they issue a SSOC after that? Also, his gulf war registry exam is in a week. VA cancelled the first one. Could this be why they didn't service connect it? Because they don't show it in the records yet? Everything they send us has on it that he is a gulf war vet but we just found out about the registry in July and he has been to va to determine that he is eligible and they scheduled his exam.

Should we close this claim and re-open another? We also want to include two other conditions but were trying to wait this out first.

Any help is appreciated.

[Berta]

"My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records"

Was this a VA doctor or a private doctor?

VA doctors definitely are supposed to review the medical records and SMRs-and it would be odd if a VA doctor's opinion did not refer to them-

Private doctors also -if the IMO is going to fit into the VA's criteria -must review medical records and in most cases the SMRs too-in order to be able to opine on the disability.

This is what gives them the medical rationale for their opinion.

If this was a private doc who charged you real money for this IMO- they need to give you a refund or do it right. The criteria is here under a search for an IMO that the VA cannot reject unless they have a good medical rationale themselves.

You should get the IMO clarified ASAP because the Manifestation period has not been aestablished yet for Gulf War "Chronic qualifying disabilities".

If VA decides that there will be a manifestation period they could say that the illness must have been manifested at 10% or more within one, two, three years of service---

claims pending will be on hold if the VA comes up with any regulation like that.

There is nothing pending at the Federal Register site yet.

[spike]

if you received a denial the process is simple file a NOD and receive a statement of case. With that you can then take it as an appeal. At that point you give the information to your agent, service officer or attorney and get imo's to back you up better at that level. You can get a DRO review at the local level and at the VBA

[Ricky]

VA is famous for this type of decision with GW1 vets and service connection. At this point I would not waste any money or time on IMO's (Sorry guys dont mean to go against you). IF he is a GW1 veteran; had active service in SWA; HAS DIAGNOSIS OF FIBRO; symptoms meet the requirements for a 10 percent rating then this is a presumption of service connection claim. IF THEY OFFERED A LOCAL HEARING TAKE IT!!!! Write the letter tonight requesting such a hearing and when you get one pound, YES literally POUND this into their ignort heads:

§ 3.317 Compensation for certain disabilities due to undiagnosed illnesses.

top

(a)(1) Except as provided in paragraph © of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability:

(i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and

(ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.

(2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following):

(A) An undiagnosed illness;

(;) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms:

( 1 ) Chronic fatigue syndrome;

( 2 ) Fibromyalgia;

( 3 ) Irritable bowel syndrome

In the past these idiots were incapable of understanding the meaning of a medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology. Congress got tired of all the complaints so they went back and said look idiots, when we wrote this law we thought you were capable of interperting it. However, it appears that we were wrong so here is what the hell we meant and they added the words Fibro, CFS and IBS. VA then followed and did the same.

HOWEVER, this did not resolve the problem. For as we all know, the VA only hires one brain celled green monkeys from Wheretopia as raters. In the conduct of their, what they consider, welfare duties to the veteran community all they could recall was the term Undiagnosed Illness.

Now speed forward - here's one of them one brain cell, high speed, un-educated GS7 raters who is much better than the vet because my God he is a rater, with a claim in front of him/her in which the medical records provide a diagnosis of IBS or Fibro or CFS. He/she jumps and moves at the speed of light to protect the American taxpayer from a criminal minded veteran attempting to claim a few bucks so he can continue to buy weed and beer at the local 7-11 store while all other Americans are at work. WHAM DENIED then as he turns to his co-worker, one brain cell Susie, he declares - Boy did you see that? this idiot was trying to screw the taxpayers. I showed him what happens when he tries to screw over the taxpayers. Look at this what on earth was he thinking when he tried to claim service connection for an undiagnosed illness and then provided me with the medical evidence saying he had a diagnosed illness. What an idiot. I bet he will read the regulations better the next time before he fools with this protector of the American taxpayers, ole one brain cell John! Then as the supervisor walks by, sir, sir, look at what this idiot veteran tried to do. And as he quickly looks over the claim he does not have the heart to tell ole one brain cell John how fu(*& up he is. The only thing on his mind is the next step increase and the yearly bonus.............and the story repeats itself..............

Sorry for the rant but its late, I hurt, and the meds are twisting the ole mind plus did I mention that VA raters are idiots!!!!!!. Bottom line is this is a bad decision. No its not bad it is criminal. Demand a post determination hearing with a DRO. You have the right to demand a personal hearing with a VA employee at anytime during the rating process. It is part of your due rights process. Now one requirement for a presumptive rating is that it must meet the 10 percent level. This can be proven with medical documentation and LAY STATEMENTS. From the little bit you posted it appears that the denial was not based upon this fact. If it had been there is about three pages the idiots have to prepare which is outlined in the M21 bible for va raters.

Once again sorry to all for the rant and the story telling. However, I am pissed to the max - I see/help GW1 vets over and over again who have received the same denial. I was scolded on another board for beating up the va on another board in which the always pro va guys simply say just file a NOD that will solve the problem. No it won't. The problem is not the appeals process its the damn raters who can not get their heads out of their butts. Its the raters who can not read. Its the raters who do not know the regs. Its the raters who simply fail to follow the regulations due to incompentence or laziness or criminal intent. The problem is that now we have another deserving veteran who suffers the loss of his/her sanity for the next two years because he has to wonder if one of the ole one brain cell raters mated with another one and produced a one brain cell attorney who is now king at the BVA as evidenced by the BVA case posted by rdawg!

Forgive me my fellow Hadit family for taking up so much of your time with this post. I love all of yall!

Edited September 6, 2007 by Ricky

[Ricky]

rdawg forgot to address your statement in your post. Whats makes this BVA decision a good one. The Vet clearly has IBS. They provided every excuse in the world not to provide direct service connection so by their own addmitance they can not contribute the IBS to a medically definable etiology.

He served in GW1. He has IBS which as the board stated did not occur until years after his discharge. He is within the presumptive period. The regulation states that DIAGNOSED IBS is presumptive for GW1 veterans.

Makes no difference how he got it. Even if C/P exam said at least as likely as not he got it from his grandma's chicken soup its presumptive. Just as DMII is in AO cases. Does not make any difference if every individual in your family from 1600 - 2007 has died from DMII, if you served in VN, boots on ground, then it is service connected.

This is a CUE in its truest definition. Regulations says served in GW1, symptoms occur at the 10 percent level, happens before 2011, have diagnosis of IBS, Fibro or CFS then it is service connected.

BVA denial letter provides veteran the bases for presumptive service connection to include service requirements then states veteran service in SWA, has IBS therefore, it ain't service connected!!!! cue cue cue cue

See, just as in my post below, sometimes two of them one brain cell raters get together during work hours and reproduce. Result is a one brain cell attorney who can not work anywhere else in this country so he gets hired at the BVA. Most of them are probably unable to pass a state bar exam.

I can not for the life of me see how this could be seen as a correct decision - not if you follow the regulation jmho.

[rdawg]

Hey Ricky,

That's exactly what I was saying. CUE CUE CUE!!! The word CUE is even in the link I created in my first post. The BVA knows it's a cue. They have many other decisions exactly like this where they made the correct decision and service connected the undiagnosed illness on a presumptive basis. Now it looks like the RO is usng this decision as a precedent to deny claims.

I posted this BVA decision on Hadit a while back and asked the elders to look at it as I was just a newbie. They all said it was a proper decsion. My question at the time, and I'll ask it again, how do you find out who this vet is? how do you help him? is there a way to follow this case to CAVC?

JMLO,

I would knock down th RO's door and demand to speak to someone who is in charge of this idiot who denied your claim. This rater was obviously trained to deny everthing first on whatever grounds they can come up with. He could have said "Even though your doctor states "at least as likely as not" he did not review the records therefore humptey dumptey sat on a wall, humtey dunptey had a great fall, all the kings horses and all the kings men couldn't grant you benefits ever again." It would've had the same meaning as what he actually wrote.

Basically they are telling you to go to hell. Take your claim and shove it. Stick it where the sun don't shine. Kiss their hairy behind. Now that's how you read between the lines.

Sorry for the rant.

rdawg

[jmlo]

Thanks to everyone for your comments.

This was not an IMO, this was a VA Doctor. His opinions have referred to his SMRs in the past. This particular one vaguely referred to them. I guess we could start over with a Independent Doctor to review the records and give an opinion. I feel that they are in error based on 2 issues. First, the service records indicate he is a GW Vet, served during Southwest Asia Theater of Operations, and 2. This illness is presumed to be service connected under current law. We have already established that he has fibromyalgia with the medical records and that it is chronic, severe, and worsening.

In the meantime I've prepared a letter to go back to the RO. Please give your thoughts. Thanks.

D. Svirsky

Service Center Manager

Department of Veteran Affairs

Roanoke Regional Office

210 Franklin Road, S. W.

Roanoke, VA 24011

RE: VA FILE #

Dear D. Svirsky:

I am in receipt of the statement of my case dated August 28, 2007. I am in disagreement of your decision to deny service connection for fibromyalgia because these facts were overlooked.

• The veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War.
  
  
  • The competent and probative medical evidence of record shows that fibromyalgia, a condition presumed by regulation to have been incurred during service in the Southwest Theater of Operations during the Persian Gulf War, is chronic and was manifested to a degree of 10 percent or more prior to December 31, 2011.
    

  Thus, the criteria for entitlement to service connection for fibromyalgia are met. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102. 3.303, 3.317 (2006).

  Furthermore, as documented by my military records, I am a Persian Gulf War veteran, having served in the Southwest Asia Theater of Operations during the Persian Gulf War during the period of 1994. 38 U.S.C.A. §1117(e); 38 C.F.R. §3.317(d). Accordingly, the VA provisions pertaining to Persian Gulf veterans are applicable to my case.

  Under the provisions of specific legislation enacted to assist veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more prior to a specific presumption period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i).

  Due to these facts being overlooked, I would like to have a hearing before a VA Regional Office Hearing Officer at your earliest convenience before proceeding with my appeal to the Board of Veteran's Appeals.

  "My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records"

  Was this a VA doctor or a private doctor?

  VA doctors definitely are supposed to review the medical records and SMRs-and it would be odd if a VA doctor's opinion did not refer to them-

  Private doctors also -if the IMO is going to fit into the VA's criteria -must review medical records and in most cases the SMRs too-in order to be able to opine on the disability.

  This is what gives them the medical rationale for their opinion.

  If this was a private doc who charged you real money for this IMO- they need to give you a refund or do it right. The criteria is here under a search for an IMO that the VA cannot reject unless they have a good medical rationale themselves.

  You should get the IMO clarified ASAP because the Manifestation period has not been aestablished yet for Gulf War "Chronic qualifying disabilities".

  If VA decides that there will be a manifestation period they could say that the illness must have been manifested at 10% or more within one, two, three years of service---

  claims pending will be on hold if the VA comes up with any regulation like that.

  There is nothing pending at the Federal Register site yet.