REVISED GERD / IBS CUE, March 23, 2011 decision

[Justaskpat]

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 November 19, 2019 by Justaskpat
Uploaded 2011 C&P GERD/IBS diagnoses/comments and 2019 C&P DBQ that resulted in SC GERD.

[Justaskpat]

On 9/28/2019 at 9:09 AM, GeekySquid said:

that blah blah blah is the line you want them to read and tells the reviewer this specific thing is what is important for you to read/grasp.

Hello GeekySquid. I think I've finally got the CUE right for GERD/IBS. If you get time, could you flip through it and tell me what you think? I'd appreciate any input you might have to offer. thanks!

[paulstrgn]

11 hours ago, Justaskpat said:

If you get a minute, could you take a look at my CUE and tell me what you think?

I can look at your CUE but I am not the best person for that @Berta is awesome with CUEs there are also others here who are much more qualified than I am when it comes to CUEs.

[Justaskpat]

3 hours ago, paulstrgn said:

best person for that @Berta is awesome with CUEs

thank you Paulstrng. Appreciate you being candid  

Maybe @Berta will see my CUE. Have a great day!

[Justaskpat]

On 9/9/2019 at 7:18 PM, GeekySquid said:

Take what i wrote and read your doc for those type flaws.

@GeekySquid I finished the revised GERD/IBS CUE, following your suggestions.  If you have time, could you read it over? It's similar to the Anxiety issue (haven't finished that one yet) in that the Rater seemed to substitute his own opinion. The C&P was so poorly written, maybe the Rater just got confused, but there were diagnoses in my STRs that he should have seen.  Thanks.

[Vync]

I took a look at your documents. Looks like Dr. Bischoff was very abbreviated.

Did you happen to serve in Southwest Asia? If you did, look up the Gulf War presumptive illnesses. If you meet the criteria for serving there, that considerably changes the standards they must use when exploring gastrointestinal issues and granting SC.

38 CFR 3.03(b) shows what the VA may have used to define chronic. I bet the VA examiner (rater) looked for the term "chronic" and didn't see it, but may not have understood how the VA defines chronicity and continuity. This might be a helpful addition to back up your CUE if you need it.

Quote

38 CFR § 3.303 - Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Based on your STR exhibits, it looks like you have quite a history of diagnosis and treatment for GERD and IBS while in the service and afterwards. Even if you only had a couple of treatments in service, the last two sentences support cases where a condition is not deemed chronic, but continues after service.

Even if you win SC, you should expect the VA to combine GERD and IBS together. That's due to this which is found here: §4.114   Schedule of ratings—digestive system.

Quote

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.

I won SC for both GERD and IBS and was awarded separately. Later, the VA called CUE and combined them due to that paragraph. They just give you a single rating, but it will be the higher of the two. That might take the air out of your complaint that they rolled them together, but still focus on each separately and see what they do.

Some have written elsewhere that if you have to describe a CUE then you don't have a CUE. However, I don't believe that. One thing I did differently in my CUE was to describe how the specific legal requirements of 38 CFR (whatever) were not met. In the case of 38 CFR 3.303(b), you could reinforce it with the number of manifestations (times you sought treatment) of each condition during and after service (but before the date of the rating decision).

 

[Berta]

I feel you have made a very strong argument-I think you should change the 38FCR references to 38 CFR 4.114-

VA loves little errors like that- that are so easy to make. They will know what you mean as to the VA SRD, but they have no common sense at all. 

I suggest referring directly to and enclosing the decision that contains CUE....as to the first page of the decision and then to the page you did add as evidence.Maybe you did that- will read again---

The C & P examiner- have you googled them to see what qualifications they have regarding their statements as to not a chronic condition etc?

They obviously did not refer well to your SMRs, but did indicate  they had them.....

I helped a vet once who had POAs and then a law firm, for his CAVC case, and NONE of them ever looked at his SMRs.

The VA did, however, but saw no nexus to his claim.

I did- and it took considerable time to do- (which the veteran could have done as well) and found enough in his SMRs, to get his non doctor to write an excellent IMO.At no charge to him. He finally succeeded with that claim and  I commend you for being willing to do all of that leg work-because this is how claims can get a far better and accurate EED.

I also wrote to the VA , as a volunteer advocate  who helped him with the claim, that fact that his attorneys did not help him, and I pointed out what they failed to do, and at that time (maybe even now) there was a 5 point criteria for payment of attorney fees.This was a fee issue for the attorneys and it was basically a NOD for him to sign, as well as me.

I never heard back from him , after he got his award letter so I believe the VA did not pay the attorney fee.

If veterans are not willing to do the type of legwork you have done, they will never succeed in getting what they want. I realise how difficult that can be for disabled veterans, but they should certainly be aware of what is in their SMRs, because VA so often just skims through the stack, violating 38 CFR 4.6 more they we know.