Denied Acid Reflex Claim???

[ronnieusmc0311]

Hello, I have a question regarding a Claim for Acid Reflex/GERD denial, but first I will start with my story: Letter for intent to file sent on FEB 2019, Filed claim for Acid Reflex July 2019, sent another claim for increase in Asthma (was at 30% for this) on September 2019. Increase in Asthma was granted 1 month later with increase to 60%, Acid Reflex Gerd was deferred. 2 weeks later, Acid Reflex/GERD claim was denied and was stated as "not service connected" with an arrow connecting it to my Asthma. When I sent medical documentation from my Private doctor, she connected my Acid/Reflex/GERD to my Asthma and  corticosteroids inhaler usage. When I had the C&P exam, I stated the exact same thing that it started in the Marine Corps after being prescribed  corticosteroids inhalers, I have been on them since and was Medically retired for Asthma. This rating would have put me at 95% thus rounding to 100%, so as you can tell I am bummed but determined to set this right, I feel as If someone made a mistake somewhere. What should be my next step? NOD? I'm not to experienced on the process, I will be faxing the Claims intake center for my C-FIle, but what should I do next? Thank you!

[lotzaspotz]

On what basis did the VA find your independent medical opinion inadequate to link your GERD to the treatment you take for service connected asthma?  If your private doctor can address that point, you can submit a supplementary review request if you want to try to keep it local at the Regional Office.

If you can’t or don’t want to get new and relevant evidence, you can file a higher level review request with the Regional Office.

If you no longer want the RO to handle it,, you can file a Notice of Disagreement, with or without new evidence, to the Board of Veterans Appeals in Washington, DC.

Personally, we have had more success with the Board correcting the RO’s lack of thoroughness and accuracy with many of my husband’s appeals.  My husband had two DBQ’s by treating physicians completed and submitted for secondary service connection for GERD linked to pain meds taken for service connected conditions.  The RO denied with no C&P exam.  We were under the old system pre-AMA, so we submitted a DRO review request.  This resulted in a Rubber stamp denial, again with no C&P exam.  We then appealed to the Board.  The Board granted the claim for GERD without a C&P exam.

Edited November 6, 2019 by lotzaspotz
Post Script.

[Vync]

Welcome to Hadit!

The VA's justification for denying your GERD claim should be in the rating decision under the REASONS AND BASES section. They are required to tell you explicitly why they grant or deny each claim. If you are not certain, you can post the content from that section for other members to review and offer their opinion, just be sure to redact/omit any personal information.

As you already know, you need these three things to get something SC:
1. Event/injury in service, existing SC disability, or presumptive condition
2. Current diagnosis
3. Medical nexus connecting 1 and 2

Sounds like you already have all three. The only potentially legitimate reason for a denial if you have 1 and 2 would be an issue with the IMO nexus. It might be a case where the doctor did not use the VA's favorite jargon:
100% = "due to", "caused by", etc...
75% = "more likely than not", "most likely", etc...
50% = "least as likely as not", etc...

It could also be weakly phrased medical rationale, failure to review medical records, etc...

I had an IMO denied because the doctor used words like "possibly" or "probably". I talked with a guy a while back who's GERD was denied because the doctor did not test for heliobacter pylori bacterial infection. Once he got it ruled out, he succeeded.

My GERD was SC secondary to 20+ years of daily NSAID use to treat SC disabilities..

Keep in mind if the evidence is equal for and against, the VA is supposed to concede SC per the relative equipoise rules (i.e. benefit of the doubt).

Regarding the asthma increase, make sure the VA gave you the correct effective date. For increases, medical records going back 12 months prior to the date you filed the intent claim can be used to get an earlier effective date. Also, going from 30% to 60% for asthma often triggers a follow up examination about a year later. If this is the case, the decision letter should indicate "your condition is expected to improve". If you got 60% due to the breathing tests, expect them to bring you back for more PFTs. If you got 60% due to 3+ ingested/injected steroids within 12 months to treat asthma, they may almost certainly bring you back. If your doctor notes that your condition is not expected to improve, the rating continues for 5+ years, or if you are 55+ years old, they probably will not bring you back. Just be sure you have your medical treatment records handy. If you send them in proving the rating needs to be continued, they may not bring you back for another year.

You can also explore other disabilities to boost your schedular rating. If you suffer from pain, stress, anxiety, or depression caused by your SC disabilities, consider filing a mental health claim. 

Good luck!

 

[broncovet]

I agree.  While some Vets can win benefits after a denial with HLR or SCL, most Vets who win big benefits do so at the Board of Veterans Appeals or even the CAVC.  

Messing around with HLR's or SCL's (when its unnecessary) just slows down the time it takes to get this in front of a judge.  The VARO has made it clear...they dont want to award benefits.  

The old DRO was the same thing.  Yes, I even won benefits at the DRO level, but did so because I filed a writ of mandamus at the CAVC.  

Its my opinion that GS7's or even 8's 9's or 11's, dont have the authority to sign a document which grants you six figures of retro.  So, they pass it up by denying it.  

I can not name a single person (except me!) that has won "big" benefits at anything below the BVA level.  As I explained, Im an exception because I filed a Writ which shook them up.  Even tho my writ was denied, the VARO basically ask them to deny it as "moot" because they awarded the benefits in question (subsequent to me filing the writ).  

So the GS something who signed off on my benefits, can easily justify that because of the judge at the CAVC.  The writ instantly got the VARO manager involved.  So the big shots told the GS something to do it.  

[Vync]

@broncovet you can add me to the list of big wins below BVA level.

My initial rating took 5 years and granted 40%, but it took going to the BVA.

In 2013, I won 100% P&T via the DRO with retro going back to 2008 when I joined hadit and started filing new claims. 

[ronnieusmc0311]

"

5 hours ago, lotzaspotz said:

On what basis did the VA find your independent medical opinion inadequate to link your GERD to the treatment you take for service connected asthma?  If your private doctor can address that point, you can submit a supplementary review request if you want to try to keep it local at the Regional Office.

If you can’t or don’t want to get new and relevant evidence, you can file a higher level review request with the Regional Office.

If you no longer want the RO to handle it,, you can file a Notice of Disagreement, with or without new evidence, to the Board of Veterans Appeals in Washington, DC.

Personally, we have had more success with the Board correcting the RO’s lack of thoroughness and accuracy with many of my husband’s appeals.  My husband had two DBQ’s by treating physicians completed and submitted for secondary service connection for GERD linked to pain meds taken for service connected conditions.  The RO denied with no C&P exam.  We were under the old system pre-AMA, so we submitted a DRO review request.  This resulted in a Rubber stamp denial, again with no C&P exam.  We then appealed to the Board.  The Board granted the claim for GERD without a C&P exam.

Thank you for the response! I am waiting for the packet this week. I spoke to my local DAV regional office (they still take care of my claims but I did this one on my own) and the VSO told me they denied because the PA who examined me did not believe my inhaler meds did not cause my Acid reflex/GERD. My Private NP believed that my Asthma meds "more likely than not" contributed to me developing Acid Reflex. The VSO said that along with the PA, they had a MD write a lengthy statement about how my meds due not contribute to the development of Acid reflex, which is just bogus because there are studies that reject that claim. The VSO also said, if my NP would have gave her reasoning, then it probably would have worked out better. So now I'm going back to my NP and I'm going to ask that she give reasoning and possibly add a study onto it.  I feel like they really did not want me at 100%, lol.

The VSO at the DAV tells me that I should go straight for a board appeal, this is where I'm conflicting.

[ronnieusmc0311]

3 hours ago, Vync said:

Welcome to Hadit!

The VA's justification for denying your GERD claim should be in the rating decision under the REASONS AND BASES section. They are required to tell you explicitly why they grant or deny each claim. If you are not certain, you can post the content from that section for other members to review and offer their opinion, just be sure to redact/omit any personal information.

As you already know, you need these three things to get something SC:
1. Event/injury in service, existing SC disability, or presumptive condition
2. Current diagnosis
3. Medical nexus connecting 1 and 2

Sounds like you already have all three. The only potentially legitimate reason for a denial if you have 1 and 2 would be an issue with the IMO nexus. It might be a case where the doctor did not use the VA's favorite jargon:
100% = "due to", "caused by", etc...
75% = "more likely than not", "most likely", etc...
50% = "least as likely as not", etc...

It could also be weakly phrased medical rationale, failure to review medical records, etc...

I had an IMO denied because the doctor used words like "possibly" or "probably". I talked with a guy a while back who's GERD was denied because the doctor did not test for heliobacter pylori bacterial infection. Once he got it ruled out, he succeeded.

My GERD was SC secondary to 20+ years of daily NSAID use to treat SC disabilities..

Keep in mind if the evidence is equal for and against, the VA is supposed to concede SC per the relative equipoise rules (i.e. benefit of the doubt).

Regarding the asthma increase, make sure the VA gave you the correct effective date. For increases, medical records going back 12 months prior to the date you filed the intent claim can be used to get an earlier effective date. Also, going from 30% to 60% for asthma often triggers a follow up examination about a year later. If this is the case, the decision letter should indicate "your condition is expected to improve". If you got 60% due to the breathing tests, expect them to bring you back for more PFTs. If you got 60% due to 3+ ingested/injected steroids within 12 months to treat asthma, they may almost certainly bring you back. If your doctor notes that your condition is not expected to improve, the rating continues for 5+ years, or if you are 55+ years old, they probably will not bring you back. Just be sure you have your medical treatment records handy. If you send them in proving the rating needs to be continued, they may not bring you back for another year.

You can also explore other disabilities to boost your schedular rating. If you suffer from pain, stress, anxiety, or depression caused by your SC disabilities, consider filing a mental health claim. 

Good luck!

 

Thank you for the reply also! I will be recieivng the letter this week about the denial on my Acid reflex claim. As I was explaining to Alotzaspots, the DAV VSO in Phoenix told me that it was denied because the PA who examined me at the C&P exam stated my acid reflex was not due to my asthma and asthma meds. They then had a MD write a lengthy paper about how my Asthma meds are not the cause. I had my Private NP write a letter stating that my Acid Reflex is due to my service connected asthma and asthma meds, she stated "more likely than not". The problem was, she did not give a reasoning. I have already set up an appointment with my NP and will be getting that letter revised with a possible study to back up my claim.

After reading the Asthma increase letter, through and through. I do not see "your condition is expected to improve",  I know this means nothing because they can make an exam any time. Since I have been out, I have not had one examination of any disabilities yet, just my basic appointments with he VA, but most of that time was living in Washington state. I have spoke with fellow vets at work, and it seems like phoenix is a hot bed for the VA to call for exams and they suck at treating vets good down here. I was increased due to Steroid use 3 or more times in the year since I moved here, it fluctuates yearly, some years twice, others once, and like this year 4 times.

I also have a mental health percentage 50% for ptsd. So I don't know where I would go with that. As I mentioned, I am sitting at 94% total, this would have pushed me to 95 which would round to 100. Its like they knew this, lol. Well, the VSO tells me to go straight to Board, is this the right route? I will be getting a new evidence letter to submit, and maybe see a gastroenterologist to get an expert to write something.