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.

[GeekySquid]

i offer no opinion on medical issues, i only offer formatting suggestions.

please check

https://community.hadit.com/topic/75959-cue-potential/page/4/#comments

go to the Draft Version Rbrogen has on Sept 8 2019, near bottom of page 4. It is his latest.

It is my opinion you need to change the top ref to 5109A instead of 5109. 5109 is about Medical Opinions, 5109A is about CUE.

Get rid of all emotional words, accusations, fluff statements.

get rid of the word YOUR.  Words like that are personal attacks in this context. you want the reviewer to be on your side and not feel like you are making this personal to them.

This is a legal attack on the VA. It needs to be concise and direct.

use ellipses instead of inserting whole paragraphs.

format your references and citations properly and consistently.

In your narrative doc. do the same. get rid of any inflammatory or accusatory words.

Instead of say "You FAILED to....."

Consider the requirements of 38 CFR bla blah was not met

or similar phrasing. words like failed, didn't etc are an accusation and they are in an opinion format. Don't do that!

do this for both of the CUE drafts you posted. I have not read the other yet, but I suspect it is similar to this one.

 

[Justaskpat]

3 hours ago, GeekySquid said:

or similar phrasing. words like failed, didn't etc are an accusation and they are in an opinion format. Don't do that!

Thanks for the advice. I used a template for the 3, so they all have similar issues. I'll work on it.

[Justaskpat]

4 hours ago, GeekySquid said:

use ellipses instead of inserting whole paragraphs.

GeekySquid, could you please point to where this would apply in the IBS CUE? It's is the shortest CUE I've written and I don't see where I've quoted a paragraph in it. I'm also confused about how to point out where they messed up without it sounding like I'm saying they messed up. For instance, when the examiner lumped IBS with GERD under one code and one exam, each should have been separate because there are 2 separate codes. How could I say that in a manner that does not sound like I'm saying they did it wrong? The initial template I was using came from Berta's reply to my MDD CUE, quite awhile back. I have TBI, so I'm having some memory and concentration issues. My wife has helped me with putting this all together. I wanted you to know that in case I sound confused at any point, it's not because I'm not paying attention. I made a list of evidence that will preceed the evidence itself in the final package. I did not realize I should refer to each piece of evidence in the body of the CUE as "Exhibit ABC" etc, I thought I could say "see evidence", but I can see how that may sound confusing, although I did put the evidence in the order it appears in the CUE. I kind of feel like I've done all my CUEs completely incorrect and have to start over... Berta made it sound much simpler than Rbrogen's. She said to keep it short and sweet. I am going to remove all the "person comment" type comments from the other CUEs, especially the MDD where I've already removed it, just haven't posted the new version.  Is this as clear as mud? I guess the first several sentences are my questions and the rest is general information. thanks

[GeekySquid]

20 minutes ago, Justaskpat said:

could you please point to where this would apply in the IBS CUE

no i will not.

Instead I will say just cite the exact part of which ever law you are talking about that applies. for example if you were going to use 38 CFR 4.6

you would not include the entire thing

 

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

it takes up too much space in the actual CUE doc. You can attach it as a separate piece of evidence on it's own doc and appropriately titled. That doc title is how you cite it in your CUE doc for each piece of evidence.

-------------------------------------------------------------------------------snip-------------------

you might include, if relevant, something like:

38 CFR 4.6 states in part  "...Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied...to the end that decisions will be equitable and just as contemplated by the requirements of the law."

followed by

Dr. xxx records/notes/opines/states in (cite doc) "...blah blah blah..."; C&P exam says "...blah blah blah...".(writing exactly what the EVIDENCE says as it relates to 38 CFR 4.6. followed by) The requirements of 38 CFR 4.6 were not met.

You can choose to create a separate Narrative/Time Line type doc and add it as an Exhibit/Enclosure, fine. Just don't use emotional language. cite it like any other exhibit/enclosure inside your CUE doc. You can "explain things" more thoroughly if you feel the need.

Remember a CUE is a CLEAR and UNMISTAKABLE ERROR.  It should not take a detailed explanation for the reviewer to get your legal point. If it does you may not have a legitimate cue. you are probably relying on opinion/interpretation instead of legal fact or evidence. doing that will fail you every time in a CUE.

@RBrogen has a perfect example in his latest draft under presumption of soundness. He may choose to point out in a narrative that just filling out a form at induction does not qualify an issue as a pre-existing problem despite his C&P examiner denying based on just that exact situation.

Just remember just because we CAN do something, does not mean we SHOULD do it.

-----------------------------------------------snip------------------------------------

that is just a possible example and only if it applies to your claim. It does not matter what your evidence type is, just cite it properly and consistently.

Enclosure A, "Record_NAME" dated XX/XX/XXXX page 4 para 3 states "...blah blah blah" is the same as Exhibit B, Dr. XXX page 3 para 2 states "....blah blah blah..." for formatting purposes.

Though in truth 4.6 should be used in almost every possible CUE. It is fairly sure that if the rater made an error they did not follow 4.6 and possibly 4.2 ( @RBrogen has a great example of how to cite both in a single sentence in his latest draft from today).

You should list all the Enclosures/Exhibits at the bottom of your CUE doc just like you do with any business letter.

as I suggested, go read that other doc. If you don't like that doc (it is a good doc!) look at the CUE thread from dawsonatl.

In there is a set of suggestions I wrote for dawsonatl.

I did  that because I had the time; what I found out from posting it, is that it set an expectation from others that I would do the same for them. I have had 30 PM's asking me to do the same for them.

I just don't have that kind of time. I will not research all the possible illnesses a vet might have. I will not dig into thousands of pages of someones C-files, and I will not send 50 messages back and forth trying to get someone to post a redacted version of some file in their possession.

I am not your father Luke!!!!! (if you don't get that reference you are way too young).

I will not tell you the words to use. I will critique the words you do use.

you must write for yourself.

word choice matters.

you don't want to have it read like a personal attack.

you don't want anything to read like an opinion.

you don't want anything but concrete statements.

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

read what I wrote here, dollars to donuts every place I write the word YOU, you as the reader take it personal even though it applies to the YOU in a general sense; people read it as an attack on them personally. PEOPLE don't like that and can get testy about it. Getting the reviewers back up is not in the best interest of getting a favorable outcome. Telling them they "failed" cuts to the quick.

This is not to be mean. This is to help you, the vet, learn to format and write YOUR CUE.

It does not help you learn if others write it for you.

You must be your own best advocate!!!!!!! Teaching a man to fish and all that.

Think of it like taking a class. If you don't learn you get a zero.

If you have a legitimate CUE I suspect it involves a chunk of money.

If you get mad at me for not writing it for you, and take the zero, fine with me. Not getting that money is all on you. Getting the money is all on you. You will do the work if you want that money. I suspect you really want that money.

Does that sound harsh? it is just reality. I don't get paid for this stuff, I don't want to get paid for this stuff, and I REFUSE to be expected to be the person who will do homework for other people. you are not the only person I have said this too. In fact there are at least 3 people in this thread who I have said the same thing too. I think the other 27 are either mad or busy trying to reformat their own claims; maybe both.

When you figure out what has to be in a CUE and what SHOULD NOT BE in a CUE you can then help others learn what to write. At that point if you have the time and interest to write CUE's for others, NIFTY, but I doubt that will last long.

I am willing to bet in the future I will see a post like this from you to some other vet. you might make it nicer. Good for you. I assume you are an adult and don't need me to hold your hand or sugar coat things to avoid hurting your feelings. You might think another path is more successful. Good for you; It is your choice of what path to take. I would even applaud you for being nicer than I am.

Please, take my suggestions as you will, in whatever way works best for you; the person you not the general you. Work your doc's one at a time. Post your drafts. Incorporate any suggestions you accept until YOU are happy with your doc. Then move to the next one.

There are many people here that are willing to help. to review. to suggest. to compliment or to pan your draft. If you can get her attention @Berta is the Queen of CUE. She is also knee deep in several swamps and is a very busy advocate on multiple issues. I don't speak for her, but her input is invaluable. We are lucky to have her experience, strength, avid support of veterans and spouses, and a willingness to share them as her life allows. We cannot ask for more, and I for one am grateful for what she chooses to share.

If you post drafts I will comment as I can. I do wish you the best possible outcome from your CUE's.

[Vync]

@Justaskpat 

Be sure to look up the laws in effect at the time the decision was made. The VA may have made changes since then.

This example is from current law, but might have been in effect back then. It pertains to how they combine (or prohibit combining) certain codes together. It might impact your situation.

§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.

 

If the VA overlooked or ignored evidence, consider including 4.2 and 4.6 into your complaint. Don't speculate that is was overlooked. If the evidence in your favor can be tied to a law or reg, you need to indicate the impact it would have had if included.

 

In one of my older claims, the VA claimed I did not have evidence of a certain "chronic" condition in service. I had plenty of evidence of it, but it was just not labeled as "chronic".

 

Another thought not related to CUE.  You indicated taking celexa for anxiety. Meds like that can negatively impact one's ability to function normally in the sack. If this happened to you and still happens, it might be worth considering filing a claim for it. If you win, it's an SMC-K award. Doesn't go toward your combined rating, but could mean about $100/month more. 

 

Wish I could provide more help, but I can't think as well as I used to. I hope this information is helpful.

 

[Justaskpat]

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.