I.B.S denied service connection.

[Daav2000]

Hello,

First time poster but I've been around a while.

 

I've recently been denied a claim for IBS. I've included my information below. I feel they have made a CUE in processing my claim. Any thought on how I should move forward? I have diagnosis for IBS(presumptive) was in the Gulf War what else is needed?

 

Thanks

 

 

Intestinal Conditions (other than surgical or infectious),
         including irritable bowel syndrome, Crohn's disease, ulcerative
                           colitis and diverticulitis
                        Disability Benefits Questionnaire

    Name of patient/Veteran:  
   
    Is this DBQ being completed in conjunction with a VA 21-2507, C&P
Examination
    Request?
    [X] Yes   [ ] No
   

    ACE and Evidence Review
    -----------------------
    Indicate method used to obtain medical information to complete this
document:
   
    [X] In-person examination
   

    Evidence Review
    ---------------
    Evidence reviewed (check all that apply):
   
    [X] VA e-folder (VBMS or Virtual VA)
    [X] CPRS
    [X] Other (please identify other evidence reviewed):
          VistaWeb.


    1. Diagnosis
    ------------
    Does the Veteran now have or has he/she ever been diagnosed with an
    intestinal condition (other than surgical or infectious)?
    [X] Yes   [ ] No
   
       [X] Irritable bowel syndrome
              ICD code: XXXXX
              Date of diagnosis:  11/20/2017

    2. Medical history
    ------------------
    a. Describe the history (including onset and course) of the Veteran's
       intestinal condition (brief summary):
          Veteran has claimed irregular bowel patterns since service in The
Gulf.
          Veteran reports no problems with his bowels until returning from
          service in The Gulf.  Over the years, he reports developing a pattern
          of constipation alternating with diarrhea. He reports that if he takes
          medication for constipation, then he has diarrhea for weeks and admits
          he is glad for constipation. Veteran reports bloating with
constipation
          and diarrhea. He denies seeing any blood in stools and there is no FH
          of colon cancer. Veteran denies any nausea or vomiting, or
hemorrhoids.
          He denies any abnormal weight loss. Veteran does report frequent
          cramping and gas.  He admits he is afraid not to ber in the restroom
to
          pass gas as he has soiled himself at work and at home on several
          occasions. He reports his diarrhea is explosive and uncontrolled.
          Veteran denies any food that triggers his diarrhea or constipation and
          reports he eats "normal".  He does have prescribed Miralax for his
          constipation.  Veteran does see a Gastroenterologist through the VAMC.
          He has never had a colonoscopy.
         
    b. Is continuous medication required for control of the Veteran's intestinal
       condition?
       [X] Yes   [ ] No
      
           If yes, list only those medications required for the intestinal
           condition:
              Miralax for constipation
             
    c. Has the Veteran had surgical treatment for an intestinal condition?
       [ ] Yes   [X] No
      
    3. Signs and symptoms
    ---------------------
    Does the Veteran have any signs or symptoms attributable to any non-surgical
    non-infectious intestinal conditions?
    [X] Yes   [ ] No
   
           If yes, check all that apply:
          
           [X] Alternating diarrhea and constipation
                  If checked, describe:
                     Veteran reports more diarrhea than constipation (most days
                     5-6 loose stools)with occasional constipation that quickly
                     turns back into diarrhea.
                    
           [X] Abdominal distension
                  If checked, describe:
                     Veteran reports daily bloating and excessive gas.
                    

    4. Symptom episodes, attacks and exacerbations
    ----------------------------------------------
    Does the Veteran have episodes of bowel disturbance with abdominal distress,

   or exacerbations or attacks of the intestinal condition?
    [X] Yes   [ ] No
   
           If yes, indicate severity and frequency: (check all that apply)
          
           [X] Episodes of bowel disturbance with abdominal distress
          
               If checked, indicate frequency:
                  [ ] Occasional episodes
                  [ ] Frequent episodes
                  [X] More or less constant abdominal distress

    5. Weight loss
    --------------
    Does the Veteran have weight loss attributable to an intestinal condition
    (other than surgical or infectious condition)?
    [ ] Yes   [X] No
   
    6. Malnutrition, complications and other general health effects
    ---------------------------------------------------------------
    Does the Veteran have malnutrition, serious complications or other general
    health effects attributable to the intestinal condition?
    [ ] Yes   [X] No
   
    7. Tumors and neoplasms
    -----------------------
    a. Does the Veteran have a benign or malignant neoplasm or metastases
related
       to any of the diagnoses in the Diagnosis section?
       [ ] Yes   [X] No
      
    8. Other pertinent physical findings, complications, conditions, signs,
       symptoms and scars
   
-----------------------------------------------------------------------------
    a. Does the Veteran have any other pertinent physical findings,
       complications, conditions, signs or symptoms related to any conditions
       listed in the Diagnosis Section above?
       [X] Yes   [ ] No
      
           If yes, describe (brief summary):
              On exam, Veteran has hyperactive bowel sounds with tender abdomen
              to palpation.
             
    b. Does the Veteran have any scars (surgical or otherwise) related to any
       conditions or to the treatment of any conditions listed in the Diagnosis
       Section above?
       [ ] Yes   [X] No
      
    c. Comments, if any:
        
    9. Diagnostic testing
    ---------------------
    a. Has laboratory testing been performed?
       [X] Yes   [ ] No
      
           If yes, check all that apply:
          
           [X] CBC (if anemia due to any intestinal condition is suspected or
               present)
                  Date of test:  11/19/2016
                  Hemoglobin:  14.3
                  Hematocrit:  42.5
                  White blood cell count:  9.13
                  Platelets:  246

           [X] Other, specify:  Ova and Parasites, Giardia, Culture
                  Date of test:  01/05/2017
                  Results:  Negative, Negative,  No Salmonella, Shigella,
                  Campylobacter, Shiga-toxin E. coli isolated
                 
    b. Have imaging studies or diagnostic procedures been performed and are the
       results available?
       [ ] Yes   [X] No
      
    c. Are there any other significant diagnostic test findings and/or results?
       [ ] Yes   [X] No
      
    10. Functional impact
    ---------------------
    Does the Veteran's intestinal condition impact his or her ability to work?
    [X] Yes   [ ] No
   
        If yes, describe the impact of each of the Veteran's intestinal
        conditions, providing one or more examples:
           Veteran reports he would have difficulty with performing occupational
           tasks that would require him to work away from a rest room or that
           would not allow him to go to the rest room as needed.
          
          
    11. Remarks, if any:
    --------------------
        10.  Veteran reports he works at a desk in finance and reports he is
        allowed to go to the rest room as needed. 

        ****************************************************

        VBMS, CPRS, VistaWeb were reviewed by this examiner for this claim.
        Veteran was given a diagnosis of IBS (Irritable Bowel Syndrome)
        11/20/2017.  There is specific etiology stated and there is no mention
on
        the GI consultation notes of when the symptoms started or reference to
        him serving in The Gulf.  Veteran give an account of bowel problems
being
        present since returning from The Gulf in 1991.  Veteran has only been
        seen by the VAMC providers since 2016 with no records discovered to
        support IBS symptoms being present since returning to the USA from The
        Gulf in 1991 (25 years later).  This Veteran's claimed IBS is less
likely
        than no due to his service in The Gulf. 
 

Rated Disabilities

Table of Rated Disabilities

Disability	Rating	Decision	Related To	Effective Date
tinnitus	10%	Service Connected		11/24/2016
Sensori-neural hearing loss		Not Service Connected
obstructive sleep apnea		Not Service Connected	Environmental Hazard in Gulf War
chronic fatigue syndrome		Not Service Connected	Environmental Hazard in Gulf War
esophageal stricture	0%	Service Connected	Burn Pit Exposure	01/25/2017
eosinophilic esophagitis by biopsy with GERD	10%	Service Connected	Burn Pit Exposure	01/25/2017
allergic rhinitis		Not Service Connected	Environmental Hazard in Gulf War
headaches, unexplained chronic multi-symptom illness	10%	Service Connected	Environmental Hazard in Gulf War	11/24/2016
post traumatic stress disorder (also claimed as memory loss)	30%	Service Connected	PTSD - Combat	11/24/2016
erectile dysfunction	0%	Service Connected		06/28/2017
fibromyalgia (to include joint and muscle pain)	40%	Service Connected	Environmental Hazard in Gulf War	07/09/2017
hypertension		Not Service Connected	Environmental Hazard in Gulf War
irritable bowel syndrome		Not Service Connected	Environmental Hazard in Gulf War

 

[broncovet]

4 hours ago, Daav2000 said:

This Veteran's claimed IBS is less
likely
        than no due to his service in The Gulf. 

This, above, is the deal breaker, and will result in a denial every time.  To get service connection, you need a similar, but "deal maker" statement:

The VEterans IBS is "at least as likely as not due to his service in the gulf".  Is that what the doctor meant to say?  Maybe, but he said the opposite.  You are missing the all important Nexus, and you cant leave home without it.  

The Caluza triangle is required for service connection:

1.  Current diagnosis of IBS  check. 

2.  In service event.  This appears to be documented.  

3.  Nexus, or doc statement like the one, above, that I cited.  

     You will need ANOTHER doctor to give a more favorable opinion.  It could be a VA doc, or private doc (IMO/IME).  

    I dont see a CUE here, the VA decision maker relied upon evidence given by the doc, as he should.  If the doctor made a mistake, that isnt CUE, but its possible to amend the records either by this reg, or with another doctor's more favorable opinion:

 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which theindividual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of anyrecord or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to:Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requeststo amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Sat

[Daav2000]

My understanding is the VA is wrong to deny these claims, because the law does not require veterans to prove that a specific event or exposure happened in the Gulf War. So long as the veteran, (1) served in the Southwest Asia theater of operations, (2) has been diagnosed with IBS, (3) has IBS that has manifested to a degree of 10% or more prior to December 31, 2016 and (4) has IBS that is not due to a supervening event or due to willful misconduct; then service connection should be granted.

[broncovet]

You may be right about that.   While I dont know  the facts of your case,  it could mean you are entitled to "presumptive" service connection.  

I would caution you to exercise restraint in filing your own CUE.  You have to allege the specific regulation VA violated, demonstrate that error was "outcome determinative" and in effect at the time of the alleged error, as well as demonstrate the error was "undebatebly" wrong.   

Most Vets advocates agree that "YOU ONLY HAVE ONE BITE AT cue", SO if you miss it you can not go back and refile the cue, under another regulation.  

My recommendation: FILE a NEW claim for Presumptive IBS.  If awarded, you case for CUE is stronger and you can go for an eed.  The reason is you have to show your IBS was at 10 percent in 2016, so how are you going to do that?  You may have to submit "new evidence", that is an IMO/IME with a doc opinion that you met the 10 percent criteria in 2016 for presumptive IBS.  

You can still submit "new evidence" under 38 cfr 3.156 and still probably win an earlier effective date back to when you applied, without having to deal with the onerous Cue standard of review.  

By doing it the way I suggested, above, (that is filing a new claim or a reopen), you get to keep the "benefit of the doubt", while that is completely discarded under the cue standard of review.  

An alternative is hiring an attorney, let him review your file and decide.  Unfortunately, a 10 percent rating for a few years is not a particularly large retro to attract attorneys.  That is why attorneys dont want to represent you over a few thousand in retro.  

Edited January 17, 2018 by broncovet

[broncovet]

I dont know if the "presumptive" would over rule your negative C and P or not.  Its still gonna be tough to allege presumptive, when your doc specifically stated your IBS was less likely than not due to service.  I dont think the "presumptive" automatically over rides the Caluza elements I stated earlier, it probably only helps with number 2, the in service event.  A presumptive wont supply a current diagnosis for example.  If you have been diagnosed with IBS, then they can attribute it to gulf war, but if you have NOT been diagnosed with IBS, then you wont be SC'd for it.  

Also, I did not "combine" your disabilities, but often an increase of 10 percent wont result in any increase at all.  

You could use the combined rating calculator to check to see if a 10 percent new sc for IBS would increase your rating, here.

https://www.hillandponton.com/va-disability-calculator/

If an extra 10 percent for IBS does not increase your combined rating, then you may just want to think about if its even worth it.  

Some people dont understand that, for example, if you are 90 percent (a single disability) it would take an additional 50 percent to get to 100 percent, not an additional 10 percent that your second grade math teacher taught you.  

[broncovet]

I plugged the disability percentages into the combined rating calculator, and it showed that an additional 10 percent for IBS did "not" increase your rating above 70 percent, it remained at 70.  

This is gonna hurt your cue because you have to allege in cue that the error is "outcome determinative" and, if your rating stated the same if VA fixed the error, then it would not be outcome determinative.  

[Navy04]

Daav, sorry to hear of your issues, I have had Crohns for 10 yrs so i feel you. Bronco is giving you great advice. Problem with IBS is it is harder to show medical evidence compared to Crohns and colon issues. I would not go the CUE route just get. Submit a new claim and try to get your service connection now. You can always submit the CUE later. I do not like the Appeals route,  me personally. Alot of veterans jamming the claims process with those. I like to see Vets get whatever then can on the quicker road, and go for more later when possible. Glad to have you on Hadit, and I wish you the best. God Bless