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.

[JohnM]

Lets talk about Fibro, for a moment:

We were told this pretains to the GW:

I'm JohnM's wife, I have never been in service, so where does my Fibro come in, It is an unexplained disease hurts like hell for ever and ever ( at times I just want to DIE ) In my thinking the VA is wrong in saying just from GW because, they do not know that much about it, and it can be from trauma, for me many injuries many surgeries, it is a form of arthritis (PAIN) so for any VET that has been diagnoised with it should at least file for it. What is the worst they can say "DENIED" Even SSD excepts fibro as a condition of not being able to work. after being denied then I would gather all the facts especially from pain clinic dr.'s about this miserable disease. This should be a winable diagnoiss may take a while.

Sorry I just had to put my 2 cents in being that I have this miserable thing.

[rdawg]

Ricky,

The regs are very clear. If you served in GWI or II and you get IBS at anytime, during service or post service, it is service connected. No nexus required.

Here's the way this judge described it in the first link of this post.

The veteran is claiming entitlement to service connection for

a gastrointestinal disability. At the outset, the Board

notes that the veteran had active service in the Southwest

Asia theater of operations during the Persian Gulf War. As

such, the provisions of 38 C.F.R. § 3.317, pertaining to

undiagnosed illnesses, apply.

Specifically, under 38 C.F.R. § 3.317, a Persian Gulf veteran

shall be service-connected for objective indications of

qualifying chronic disability resulting from an illness

manifested by one or more presumptive signs or symptoms that

began during active military service and cannot be attributed

to any known clinical diagnosis. See 38 C.F.R. § 3.317.

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.

For the purposes of 38 C.F.R. § 3.317, the term "medically

unexplained chronic multi-symptom illness" means a diagnosed

illness without conclusive pathophysiology or etiology, that

is characterized by overlapping symptoms and signs and had

features such as fatigue, pain, disability out of proportion

to physical findings, and inconsistent demonstration of

laboratory abnormalities.

The red text is the CUE. He is wrong, the presumptive period begins on the last day of active duty in SW Asia and ends DEC 31,2006. No inservice occurance needed. The inservice symptoms should not even be discussed in this case.

[Ricky]

John's Wife - Hello. FIBRO is an approved rated disability. We are talking about it being awarded on a presumptive basis for serving in the Gulf War.

[Ricky]

rdawg - I agree with you that the judge is wrong. I am not saying that you have to have an inservice association. From my understanding of my reading of the BVA decision you posted the vet in his original claim tried to say his IBS was service connected under the laws covering GW vets cause he had had inservice symptoms of IBS and now has been diagnosed with IBS. The BVA said nope you symptoms in service were related other diagnsoed medical conditions and there is no medical evidence of record that says your current diagnosis is related to your GW service. If it began in service, without being the result of another medical diagnosis then it would be a direct connection. Even if you had GW service they would still probably award it on the basis of connection cause they don't like to award stuff on a presumptive basis if they can get around it (thats another story and has to do with future law).

In the case of GW service presumtion you still have to meet the requirements that it be diagnosed, be at a 10 percent level, be chronic, occur during the presumptive period and NOT BE ATTRIBUTED TO ANY KNOWN CLINICAL DIAGNOSIS. That is why the nexus is needed. You can not simply file a claim, state you are a GW vet and now have IBS so the IBS is service connected. The VA will not allow it nor will the law. All claims must have a nexus. The only way to establish the nexus is through medical evidence. Now when you file your claim the VA will schedule you for a C&P. If the C&P doc says that your IBS is at least likely as not the result of your service in the GW then you are in. If not the claim will be denied and you will have to get your own medical evidence.

GW claims are the same as all others to include those that are covered under the presumptive rules. The presumptive rule simply allows the VA to SC connect certain disabilities to a vets service if the medical evidence of record provides a nexus. Without the presumptive rule, if the vet had no evidence of in service diagnosis or continued sypmtoms of a disease and then was diagnosed with that disease 6 years later he is probably out to pasture by himself if he is not able to get some very very strong IMO's. The presumptive rule just makes it a little easier.

So I have to disagree with you on the nexus issue good buddy. Not arguing or fighting just providing my honest opinion. This has been a good post and is what Hadit is all about. I still love all of you bunches. hahahahahahaha

[Berta]

I agree with this statement from Ricky -- as to "presumption"for GWVets:

"In the case of GW service presumtion you still have to meet the requirements that it be diagnosed, be at a 10 percent level, be chronic, occur during the presumptive period and NOT BE ATTRIBUTED TO ANY KNOWN CLINICAL DIAGNOSIS. That is why the nexus is needed. You can not simply file a claim, state you are a GW vet and now have IBS so the IBS is service connected. The VA will not allow it nor will the law. All claims must have a nexus. The only way to establish the nexus is through medical evidence. Now when you file your claim the VA will schedule you for a C&P. If the C&P doc says that your IBS is at least likely as not the result of your service in the GW then you are in. If not the claim will be denied and you will have to get your own medical evidence. "

Even all of the other presumptives listed in 38 CFR- have requirements-like these do-

[rdawg]

The VBA judge did not address the 10% level or whether it was attributable to another diagnoses.

He simply stated that because the vet was diagnosed with IBS it precluded him from bieng SC'd due to undiagnosed illness.

This is an exerpt from the second opinion I linked to in this post which is correct under the law. This vet is service connected without a nexus opinion for IBS because he served in the GWI. He did not have it until 3 years post service.

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).

is sc'd for ibs without nexus opinion