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.

[Berta]

Vync said:

"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"  Good! That is a ridiculous statement.

I have filed many personal CUEs and am quite happy to tell them exactly what regulation)s) they broke and why.

My whole file is being reviewed for an audit that I requested. I cannot imagine what they will think at some of the stuff I have had to put up with over the years with my RO.

One CUE took 8 years, to even be set for BVA transfer. The even tried to make up a regulation that does not exist.

During those 8 years I felt from time to time that maybe I was wrong about that specific CUE.

Then Nehmer 2010 happened and I asked the Phila VARO, handling my AO IHD claim, to consider two CUEs by then that were still pending at my RO.The awarded the main CUE as SMC and then awarded the IHD claim but they forgot the 1151 IHD claim, part of another CUE I filed- but still it goes to show how VA can try to manipulate us with rhetoric, even telling me a "specialist was reviewing the SMC CUE" but they had no specialist .....

and it was actually a prime facie CUE- meaning so Obvious that I should have never doubted myself.

The rating sheet I used was all I needed as well as the SMC mandate.

My husband was 100% P & T for PTSD and then 100% for 1151 stroke.

Obviously he was eligible for SMC.The Nehmer VA said he was eligible under Housebound as well as 100 plus 60,

but it appears that ( they only pay for one of those theories) they might have paid for only 6 months of SMC instead of 2 years,so I cued them again, on both of above situations. That is part of my audit review request.

If the audit is properly resolved I told the VA that I could drop those CUEs and that just leaves my accrued claim for AO HBP. (under 1151 and direct SC under Nehmer )

 

[Vync]

1 hour ago, Berta said:

"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"  Good! That is a ridiculous statement.

Yup! It's a simple case of "trust, but verify." The VA is well known for errors at all levels. Even though CUE reviews are supposed to be more experienced employees, they are as human as we are. I trust they are supposed to know the laws, but I had to comb through the Federal Register to sift out the exact regulations in effect at the time the errors were made on my claims. That was a lot of work. I decided to spell out the relevant laws exactly as they existed when they made the errors. I even added the year/date/FR reference #'s when necessary. Spoon feeding them can make their job easier, save time, and hopefully reduce or eliminate the chance that they will screw up again.

 

[Justaskpat]

1 hour ago, Berta said:

I think you should change the 38FCR references to 38 CFR 4.114-

Hello Berta. I am so happy/grateful to hear from you on this. I will address all your questions. First, thanks for catching my typo! As many times as I've gone over this, I didn't see it.

"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."  Does this mean I don't need to enclose the entire decision as evidence? Do I only need to include the first page, then the page(s) pertaining to the CUE?

"The C & P examiner- have you googled them to see what qualifications they have regarding their statements as to not a chronic condition etc?" Yes, I've done a search on the C&P examiner. He is a sports medicine doctor who has a 1 1/2 star rating. None of his raters made any comments though. That's pretty much all I found on him."

  "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." Thank you!  I've read through my file so many times I just about know it by heart. Going over it several times really helped build the big picture because it makes a "trend" or "cycle of illness" become evident where I hadn't seen it on the first go round. Definitely beneficial to take the time.

"will read again—" If you do get the chance to read it again, I'd appreciate any further input you may have. I have another CUE I need to work on for MDD/Anxiety. It's a lot like this one in that they did not find SC in 2011 but DID find SC in 2019. Once I get this CUE right (it's my first one) the I'll know how I should present the Anxiety CUE. I'm wondering if I should hold this CUE until I get the Anxiety CUE finished and send them in together. Does it matter? Sounds like the VA gets confused enough on their own. Might be better to send them in individually?

Thanks again Berta. Looking forward to hearing back from you.

1 hour ago, Berta said:

 

 

[Justaskpat]

2 hours ago, Vync said:

Did you happen to serve in Southwest Asia?

Hello Vync. No, didn't serve there.

 

2 hours ago, Vync said:

38 CFR 3.03(b) shows what the VA may have used to define chronic.

thanks for this code. I'm going to re read it and see if it might good to include it as a reference in the CUE.

 

2 hours ago, Vync said:

They just give you a single rating, but it will be the higher of the two.

From what I understood, after reading through a case one of the members sent me, is that they will rate the worst of the two at the appropriate level, then for the 2nd illness, if serious enough to deserve rating, they kick the initial rating up to the next highest level. For instance, if GERD was rated at 30% and a person also had IBS serious enough to deserve to be rated, they wouldn't rate the IBS (because they can't - see your quote below), they would kick the GERD rating up to 60%.  That was my take on it.

 

2 hours ago, Vync said:

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.

 

[Vync]

1 hour ago, Justaskpat said:

From what I understood, after reading through a case one of the members sent me, is that they will rate the worst of the two at the appropriate level, then for the 2nd illness, if serious enough to deserve rating, they kick the initial rating up to the next highest level. For instance, if GERD was rated at 30% and a person also had IBS serious enough to deserve to be rated, they wouldn't rate the IBS (because they can't - see your quote below), they would kick the GERD rating up to 60%.  That was my take on it.

Sounds interesting. I believe there is a reg that states that if you are SC for two different disabilities at 0%, they will grant a combined rating at the 10% level. Not sure about what you described, but I'm going to try and see what I can find.

[Justaskpat]

46 minutes ago, Vync said:

Not sure about what you described, but I'm going to try and see what I can find.

Vync here's the case the other member sent me: Citation Nr. 0919318, Decision date 5/22/09, Docket 07-23 025.

when you look at it on the BVA site, they run everything together and it's hard to read. if you can get down to the sentence that begins "The January 2005 and January 2006 RO rating decisions..." and read the next 3 paragraphs. In the end, the Veteran had prior been given a 30% rating for GERD and appealed because she also had severe IBS. For this reason (and due to good evidence and persistence on the Veteran's part, from the sound of it), the VA raised the rating (under GERD, because they could not rate IBS separately) to 60% (the next highest level for GERD).  don't know if this makes sense. maybe read the case decision over a couple times.