Do They Even Read Their Own Regs

[rdawg]

undiagnosed illness

excerpts

A qualifying chronic disability means a chronic disability

resulting from an undiagnosed illness; medically unexplained

chronic multi-symptom illnesses that are defined by a cluster

of signs or symptoms such as chronic fatigue syndrome,

fibromyalgia or irritable bowel syndrome; or any other

illness that the Secretary determines warrants a presumption

of service connection. 38 C.F.R. § 3.317.

In the present case, the evidence of record does not

establish that the veteran's gastrointestinal disability

constitutes a qualifying chronic disability under 38 C.F.R.

§ 3.317. Indeed, the veteran does not have an undiagnosed

illness of the gastrointestinal system. To the contrary, the

competent evidence, to include VA examinations in May 2004

and February 2006, show assessments of irritable bowel

syndrome. Moreover, there is no demonstration that such

irritable bowel syndrome is a symptom of a medically

unexplained chronic multi-symptom illness. Therefore, the

requirements for a grant of presumptive service connection

under 38 C.F.R. § 3.317 have not been satisfied.

in one paragraph they are saying that IBS is an undiagnosed illness subject to presumptive SC. In a subsequent paragraph they are saying that the veteran does not have an undiagnosed illness -- he has been diagnosed with IBS.

who's on first? what's on second. I don't know is on third.

[Pete53]

Catch 22 John

[Ricky]

At least they discussed the evidence. GWS claims are hard. They are not supposed to be however, that is just the way it is. I think this is what they are saying: Undiagnosed Illness: What they are looking for is a doctor to say that he is unable to establish the etiology of the IBS therefore, it is at least as likely as not that the IBS is related to his GWS. It does not look like the C&P did this nor does he have an IMO that does so. Therefore, the IBS is a diagnosed illness. Same as the requirements for an AO claim in that just cause you have been diagnosed with DMII does not mean that VA will automatically SC it. You must still have some medical authority to state that it is service related based upon your exposure to AO. Looks like a bad C&P to me. If they and the doc new that the claim was for undiagnosed illness due to GWS then the doc should have been required to and should have commented on the etiology. The only evidence discussed that spoke of the etiology is the hired gun they used to opine against the award of the claim. This is a case of the wolf eating the chicken. They saw a weak claim, failed to properly assist and grabbed the chicken and ate it before the poor thing new what was coming.

The direct service connection issue is the same from what I read in the full order. It appears that his symptoms were attribitued to several different causes which make them not meet the continuity of symptomology nor a chronic disability.

At least that is the read I get from the full order. Bottom line is he can go to the court for failure to provide a proper C&P (duty to assist) or restart the claim with a good IMO. Although 99 percent of the time the RO will ignor the IMO at least the BVA will reconize it which usually results in an approved claim. jmho

Edited February 2, 2007 by Ricky

[rdawg]

nice reply objee. this paragraph should sum it up, for anyone with at last a 6th grade education.

At the outset, it is noteworthy that it is not in dispute

that the veteran has IBS and a sleep disturbance disorder.

As he served in Southwest Asia during the Persian Gulf War,

and IBS became manifest after such service (and is not shown

to be due to nonservice-related intercurrent cause), service

connection for IBS is clearly warranted under the controlling

law and regulation (i.e., 38 U.S.C.A. § 1117; 38 C.F.R.

§ 3.317).

[Vike17]

Objee was correct with his first post. There must be evidence that the IBS is the result of an undiagnosed illness.

in one paragraph they are saying that IBS is an undiagnosed illness subject to presumptive SC. In a subsequent paragraph they are saying that the veteran does not have an undiagnosed illness -- he has been diagnosed with IBS"

They aren't saying IBS is an undiagnosed illness subject to presumptive cervice-connection, they're saying IBS can be the result of an undiagnosed illness of the gastrointestinal system, and the veteran in question does not have an undiagnosed illness of that bodily etiology that has caused the IBS.

Vike 17

[Ricky]

Vike, maybe I do not understand what you are saying but I think you are wrong. GW presumptions for undiagnosed illness include " the multi-symptom illness of IBS, Chronic Fatique syndrome and Fibro. I understand the point that if the doc says you have IBS then it is a diagnosed illness. However for the purposes of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 the intent of congress was to add these diagnosed items to the list as they can arise from an unknown etiology. You do not have to have an undiagnosed illness of a body system that results in one of the three. You simply have to be diagnosed with one of the three and have the doc not know what the etiology of them are. In doing so he is supposed to say diagnosis: Chronic IBS of unknown etiology, therefore it is at least as likely that the IBS, CFS OR Fibro is related to the veterans service in the Persian Gulf.

Your thinking is why a lot of GW vets have such a hard time in getting claims through (not saying bad things about you buddy). When most raters review the claims they see "due to undiagnosed Illness" then they see the words IBS, CFS, FIBRO and they say sorry dude, IBS,CFS, Fibro is an accepted medical diagnosis - denied. Believe me I have seen many just like this. They get overturned by BVA but the vet has been put through hell for 2-3 years just because the rating officials do not or do not want understand the regulations. If you will research the issue you will see that the apathy by the VA/raters on these claims stem from the fact that the VA fought the inclusion of the 3 diseases into the undiagnosed category because in 80-85 percent of the medical diagnosis for these the etiology is unknown. Don't forget we guys are going through the same thing the VN vets had to go through for many many years so the claims are simply hard to win at the RO level. And yes the first denial by the RO results in the dropping of about 40 percent of the valid claims for GW guys.

The other side of the coin is that some GW guys will attempt to file initial claims that contain the senerio that you stated. They have some unknown illness of the gastero system that has resulted in IBS along with other issue such as vomiting etc....... Within the medical community and VA the IBS is a diagnosed illness. Although it is unknown what is going on in the belly the gastero system is the cause of the IBS. I know it is confusing but that is the way it is. I have personally seen BVA denials of undiagnosed illness along with IMO's from civilian docs saying so. Another example is that it is UNKNOWN why certain injections, oil smoke etc.... Bottom line here is that a reference to anything in the medical report will prompt a denial for "undiagnosed illness".

The over all bottom line is that for these three to be SC'ed due to undiagnosed illness, it is a must that the C&P doc or the civilain doc if you are seeking your own IMO says IBS, CFS or Fibro of an unknown etiology, therefore it is as least as likely that they are due to your service in the Persian Gulf. No if's, but's or anything else that is the black and white of it all.

I would suggest that if you are a GW vet or you are trying to assist one you check out the American Gulf War Association (http://www.gulfwarvets.com). They have a web board dedicated to GW Vets. Just like on Hadit there are old guys that are smarter than me who have an excellent hanlde on GW claims.

[Vike17]

Ricky,

Yes, you posted what I was trying to say the first time. I should have said 'symptoms' of IBS, not just IBS by itself! Having said that, the BVA decision appears to be correct. If the veteran has an actual diagnosis of IBS, then it is a disagnoses illness and is not subject to compensation under the presumptive regulations surrounding the Gulf War syndrome.

"the intent of congress was to add these diagnosed items to the list as they can arise from an unknown etiology.You do not have to have an undiagnosed illness of a body system that results in one of the three"

The intent of Congress an VA was to list these diagnosed disabilities because the symptoms of these [can arise from an undiagososed illness, thus warranting service-connection under that particular DC.

"When most raters review the claims they see "due to undiagnosed Illness" then they see the words IBS, CFS, FIBRO and they say sorry dude, IBS,CFS, Fibro is an accepted medical diagnosis - denied. Believe me I have seen many just like this. They get overturned by BVA but the vet has been put through hell for 2-3 years just because the rating officials do not or do not want understand the regulations"

Actually if the rater see a actual IBS diagnosis due to undiagnosed illness, then they are doing there jobs. The veteran must exibit 'symptoms' of IBS ect... from an unknown etoilogy, like you said, to warrant service-connection. An actual diagnosis would indicate the doctor knows what is causing it. I wouldn't saty its on the rVSR, maybe the doctors?!?!?

"If you will research the issue you will see that the apathy by the VA/raters on these claims stem from the fact that the VA fought the inclusion of the 3 diseases into the undiagnosed category because in 80-85 percent of the medical diagnosis for these the etiology is unknown"

To the average rater, it doesn't make a bit of difference what was done in the courts. They are simply follwing the regulation as it is written (see above explanation).

Vike 17

Edited February 3, 2007 by Vike17