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]

That opinion looks promising. You should at minimum get SC. However, I don't know enough of backdating/CUE yet to get the previous denials overturned. Berta and others have significantly more experience than I have. However, I am eagerly interested to see how this goes for you. 

Remember, common sense is not so common in how the VA addresses past mistakes. I hope you are able to get a reversal on the previous denials.

[leadbelly1981]

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.

Edited January 30, 2016 by leadbelly1981

[Navy4life]

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!

[ArNG11]

I cannot phantom an attorney that would not go after this.  If I were I would gladly take the case. I would like the fight.  But I am neither an attorney nor an entity knowledgeable,versed, and functional enough to pursue a claim such as this.  You have the elements for a good defense, my only suggestion is, don't go for CUE unless you absolutely have to.  You will have a daisy of a time trying to win that way.  Keep plugging away the way you are. Contact an attorney and get  a professional medical opinion to line up your case and win that claim. Follow and heed to their advice.  JMO

Good luck, Fight till your last breath!

[leadbelly1981]

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

 

 

1. The evidence in SMR clearly shows that while in the service I suffered from constipation. 

2. The evidence in SMR also shows a diagnosis of chronic constipation on 5/31/01.

3. The evidence in SMR also notes on 8/26/03 Constant problems with constipation for the past two and a half years.

4. During the Compensation and Pension exam, dated November 17, 2003 the physician concluded that I suffered from suffered from constipation.

5. 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.

1. 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.

2. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.

3. 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.

4. 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.

1. 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.

[Navy4life]

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