constipation claim, ibs ?

[leadbelly1981]

I started having trouble with constipation pretty bad while I was in the army. Upon my ets at the exam I told the doctor that I had a lot of trouble going. I had also been seen twice for constipation while in the service

 

I received a letter from the va a few months after getting out stating that consipation is a symptom not a diagnosis and that my claim was denied and if I could provide new and material evidence the claim could be revisited. That was in 2004. 

 

I reopened my claim september 2015 and went to a c and p in San Francisco.  The doctor was a gasteroentrologists and he was pretty helpful. He stated that I have ibs constipation predominate. this is his exact medical opinion in the remarks section of the disability questioner.

 

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.

 

Edited December 29, 2015 by leadbelly1981

[Vync]

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.

Hey Leadbelly,
I think Pete is spot on, but I personally think the likely VA screwed up by initially denying your claim as I explain below.

But first to answer your question, regardless of whether the doctor is the VA or not, the VA is supposed to give greater weight to a specialist regarding the type of claim over a non-specialist is all cases, except with a slight exception for PTSD claims.

If you happen to still have a copy of your original C&P and denial letter, grab it and take a look at the wording they used to deny you, and most importantly who said that wording. If you want to post the text of the denial (omitting any personally identifying information), you can, but you don't have to.

The reason I ask you to look up the exact wording is because of what you stated here:

 

I received a letter from the va a few months after getting out stating that consipation is a symptom not a diagnosis and that my claim was denied and if I could provide new and material evidence the claim could be revisited. That was in 2004. 

Was the person who stated "constipation is a symptom not a diagnosis" the C&P doctor or the VA rater?

It is important to check both. 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).

Check this out. If there is not a dedicated rating criteria, the VA is supposed to rate as closely as possible to the anatomical location and "symptoms" -- not solely a "diagnosis":

http://www.ecfr.gov/cgi-bin/text-idx?node=se38.1.4_120&rgn=div8

§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.

 

In your case, the anatomical location is the colon. The symptom is "constipation" (which actually can be a diagnosis, too). There is not a dedicated rating code for constipation, but there is one for IBS (see table below), so they use the IBS rating criteria. Notice the "etc.." and "constipation" that I put in bold below? Constipation is considered a "bowel disturbance" per the IBS rating criteria shown below: http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5#se38.1.4_1114

7319   Irritable colon syndrome (spastic colitis, mucous colitis, etc.):
Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress	30
Moderate; frequent episodes of bowel disturbance with abdominal distress	10
Mild; disturbances of bowel function with occasional episodes of abdominal distress	0

I am rated for IBS due to constipation under 7319, so I can tell you that this is indeed possible. This was the closest diagnostic code available and it is what they used.

In fact, here's a BVA claim showing a veteran winning his appeal for IBS and being rated under this situation: http://www.va.gov/vetapp14/Files3/1423400.txt. Remember, BVA appeals are not precedents, but can be beneficial when showing how the VA screwed up a rating.

FINDING OF FACT
For the initial rating period prior to June 25, 2012, the Veteran's IBS more nearly approximated severe symptoms, including alternating diarrhea and constipation with more or less constant abdominal distress.

...

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.  38 C.F.R. § 4.20.

...

ORDER
A 30 percent initial disability rating for IBS for the period prior to June 25, 2012 is granted.

It might be worth it to ask the VA to CUE their original 2004 denial based on § 4.20.

In addition, keep in mind that gastro ratings don't pyramid very well. Pyramiding is when there are multiple ratings for the same body part and only the highest is used to calculate your combined rating. The gastro ratings have special rules about combining various diagnostic codes. If your current rating is for one of these conditions, then don't be discouraged about filing the constipation claim. It might not result in an increase in your combined rating, but if you pass away due to a SC condition, your spouse could qualify for DIC payments. Also, if you do get SC for it and they determine your effective date is 2004, you could get some retro too.

 

Edited December 29, 2015 by Vync
Clarification

[leadbelly1981]

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.

[Vync]

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.

I hope that this approach will work. Sometimes the VA doctors or raters do stupid stuff. They are human just like us.

[leadbelly1981]

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

Edited December 29, 2015 by leadbelly1981

[Guest]

VYnc, I do agree with you. I did post that maybe leadbelly may have to file an appeal but it really depends on the evidence in his records, and the C & P exam back in 2004. What I disagree with is filing a CUE or asking VA to Cue themselves unless a veteran has a solid grip on VA regulations and laws like Ms. Berta has it is a gamble they may not win and filing a simple NOD could prevail with the right evidence.

[harrysday]

if your a gulf war veteran IBS I believe it falls under the presumption rule and good luck