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Justaskpat

REVISED GERD / IBS CUE, March 23, 2011 decision

Question

I was denied SC for IBS and GERD IN 2011. In 2019 I was awarded SC for GERD. This CUE  is for 2011, both GERD and IBS. There are some odd aspects regarding the 2011 decision, the way it was written and the C&P report and the way it was written. I've tried to present this as clearly as I can. Note: the decision contradicts itself. the decision also contradicts the C&P Report. Honestly, I think the rater just got confused because the C&P was so poorly written. *THIS CUE HAS NOT YET BEEN SUBMITTED*Please let me know what you think. Appreciate all comments and suggestions. Thanks.

11/19/19:  Uploaded additional C&P diagnoses and comments.  Uploaded 2019 C&P DBQ that resulted in SC for GERD. 

A lesson learned that I did not realize until today. In 2010, the C&P exam was for "Irritable Bowel Syndrome (IBS), also claimed as colon polypectomy and Acid Reflux (GERD)". When I sent in "new evidence" in 2018, I sent it under "GERD" only. I should have submitted the new evidence under the exact same heading as was used in 2010.

 

VA RATING DECISION MARCH 23 2011 GERD IBS.pdf C P REPORT 7312010 GERD IBS.pdf GERD IBS CUE 2011(1).pdf

C P ADDENDUM REQUEST RE DIAGNOSIS 7232010.pdf

2011 C & P GERD IBS diagnoses comments.pdf 2019 C & P Report resulting in SC GERD.pdf

Edited by Justaskpat
Uploaded 2011 C&P GERD/IBS diagnoses/comments and 2019 C&P DBQ that resulted in SC GERD.

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1 hour ago, GeekySquid said:

example if you were going to use 38 CFR 4.6

you would not include the entire thing

sorry, I was not asking you to write anything for me, I simply didn't see that paragraph of law as a paragraph I had written. It just didn't register. @Berta had given me a template and in it she included that paragraph. I simply used the template to get started. Thank you for all your suggestions and the information you provided. I did not take offense at anything you said. Again, I don't know where you got the idea I was trying to get you to write my CUE, because that was the farthest thing from my mind when I responded to your comment.

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54 minutes ago, Justaskpat said:

sorry, I was not asking you to write anything for me,

see the sneaky way the word YOU affects our perception of the written & spoken word?. If the speaker is not absolutely clear on which sense YOU is used, people take it personal; as an accusation, even when it isn't. It is a human thing driven by how we are socialized.

The reason I responded that way to you is just what I stated, you have to work the words around for your claim. I know it is complicated and frankly Berta has some great CUE's. She also has a way with words that can get lost when others try to use her phrasing. Her writing is specific to her claims and she has the style to get her point across. That might not translate well when others try to cut and paste into their own situation.

My focus is just format. When we elaborate or use non-specific language we open the door for the VA reviewer to deny. It may imply, or can be inferred, to be opinion instead of legal fact. Most people writing their first cue are just not that good at writing this type stuff. That is not an insult, just a reality.

The brevity of the CUE matters. you don't want the reviewer to "top sheet" you claim and ignore stuff buried in unnecessary language and explanation.

CUE has to be CLEAR and UNMISTAKABLE. By it's very name, there should be little need to explain your claim.

For example read @paulstrgn 's posted question here

https://community.hadit.com/topic/76063-form-20-0996/page/2/#comment-473953

Yes paul I am picking on you... 🙂 you're a big boy you can take it.

In his post he lists a bunch of dates and info around a question. Buried in that is my exact question to him, Why isn't he doing a CUE?

If he writes his CUE right, it will be 5 to 6 lines in the CUE body. The whole thing will fit on one page, double spaced. Ray Charles can see it.

On the other hand if he wrote it like he wrote that post, he would likely lose. Now to be fair he admits he had not thought of CUE and writing posts is vastly different than writing a CUE, and he knows that. So no paul I am not really bagging on you. 🙂

I have taken a couple minutes and written up formatting suggestions in a general way. I will attach it here.

It contains the general suggestions and a suggestion about how to write a specific statement.

Use it, don't use it. it is up to you. No matter what you submit I hope the reviewer gets your point and agrees with you.

 

cue template to post - Copy.pdf

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@GeekySquid I never mind being used as an example. You were 100% correct is what I wrote was confusing. 

I work for the federal government where we write a lot of decision going to individuals. I am always stressing to the employees to write it in plain English. Don’t try to razor dazzle the attorney or the individual with your legal ease. Instead write it out haha n plain English l, nothing fancy. In our case they are denials (we will use regulations and section of laws in our decision). I tell them state the section of law but write it in plain English as to why they don’t qualify. I try to apply the same principals when I file for a benefit with the VA. I tell them what I am looking for and what I want the outcome to be. I don’t want them to guess what I am looking for, so I try and write it as simple as possible.

Geeky always feel free to use me as an example, as you said I am a big boy and will never be offended.

Geeky has great advice, after reading what he suggests and if you believe he is right (I think he is) then follow his advice.

Good luck!!

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8 minutes ago, paulstrgn said:

Don’t try to razor dazzle the attorney or the individual with your legal ease.

absolutely.

CUEs are odd in this context because the basis has to be legal and the evidence has to be medical. it is, IMO, best to just to stick to quoting the law or evidence.

9 minutes ago, paulstrgn said:

Geeky always feel free to use me as an example, as you said I am a big boy and will never be offended.

i would never intentionally offend you, mainly because I know you to be a reasonable person who can take being used as an example or disagreed with. we all have viewpoints and opinions and I respect yours. even when you add a disagreement to my view, you strengthen the conversation and I get another chance to learn even more.

 

12 minutes ago, paulstrgn said:

I don’t want them to guess what I am looking for, so I try and write it as simple as possible.

this is so important. get those pigs to the right slop pen from jump.

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On 9/7/2019 at 10:17 AM, Justaskpat said:

In 2011 I was denied SC for IBS. There is evidence in my SMRs of chronic IBS that began during my military service. The C&P report also stated I had IBS. I would appreciate all comments and suggestions regarding my CUE before I submit it. For the sake of clarity, I'm also attaching that shows links to support my statement that there is no medical test or objective evidence that can confirm IBS.

Thank you.

 

CUE IBS 2011.pdf 703.2 kB · 9 downloads Errors + Confusion in Examiners Report 7-31-2010.pdf 2.54 MB · 5 downloads

§4.114   Schedule of ratings—digestive system.

Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

Unfortunately,  this statute would rebut your CUE, to seperate the combined IBS and GERD; but there's some good news.

My understanding of the bolded part, is that if a single rating is going to be assigned; the highest rating must be given from either 7319 and 7346 depending on the severity of the symptoms.

What does this mean? The highest rating of the two diagnostic codes would fall under 7346 Hiatal Hernia [GERD is assigned this code]at 60%. (That is the highest that is allowable.)

7346 Hernia hiatal: (hiatal hernia)

Symptoms of pain, vomiting, material weight loss and hematemesis or
melena with moderate anemia; or other symptom combinations
productive of severe impairment of health.................................................................. 60

Here is a case where the veteran was granted 60% for combined GERD and IBS. Please read carefully. This case outlines exactly how the board used the medical evidence and the LAW to get it granted. You may have a CUE for getting assigned the highest rating. 

https://www.va.gov/vetapp09/files2/0919318.txt

I apologize if this isn't what would be ideal to hear, but I believe I found a way for attaining a higher evaluation, under your circumstances.

 

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