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.

[Ricky]

I am glad the veteran got his claim approved for it should have been approved. However, if the judge made such a determination that Gulf War Service + IBS - nexus = approval he was wrong. He was also wrong to provide that a diagnosis of IBS precludes the approval of the claim under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. 3.317 spells out that IBS is applicable in this situation. It is plainly stated there cause in the begining VA was erronoulsy denying claims of this nature cause the disease was "diagnosed" and this was not the intent of congress. Oh well, like I said this has been a great post and in the end this veteran got his just dues - claim approved. Thank God there is some justice left in the world.

[rdawg]

Hey Ricky,

I hate to burst your bubble but it's two different cases by two different judges. I was using the second case as an example of the correct application of the law which is GW + IBS or Fibro of CFS = SC. No nexus required. If this is not the law then what good are pesumptive conditions? What part of the Hickson elements does presumption satisfy? Current chronic condition? Inservice occurance? Or nexus?

I say presumption satisfies both the inservice occurrance and the nexus. Am I wrong?? Anyone (even Vike17)?

Edited February 7, 2007 by rdawg

[Berta]

RDawg- I am not sure if this is the same decision you refer to:

http://www.va.gov/vetapp06/files3/0615044.txt

Now I see your point-still I am baffled by this BVA decision-

[rdawg]

Berta,

Yes, that's the good decision. The very first link in this post is, in my opinion, a CUE by the BVA judge.

How would someone go about trying to correct this error if they are not the vet? These decisions don't list the vet's names so how could someone contact this vet and let him know he has a well grounded claim? Is there a way to trace it up to the CAVC?

Just some thoughts.

Rdawg

[Berta]

I guess it gets back to this:

"Moreover, there is no demonstration that such

irritable bowel syndrome is a symptom of a medically

unexplained chronic multi-symptom illness" in the initial posts-

compared to this statement in the BVA case I posted this AM:

"2. Competent evidence establishes that the veteran has IBS,

and a sleep disturbance disorder (dyssomnia) that is either

due to undiagnosed illness or is due to his service connected

dysthymic disorder . "

I dont think the vet with possible CUE even had a vet rep-

Maybe the BVA would allow you yourself to cue this decision!

Dont know-

I got two BVA decisions in the mail years ago-they were not regarding me at all-

I contacted the Vet reps on the brief and mailed them to the reps-

One vet got 100% so I congratualated the rep- as I read the decision since it was addressed to me-

the other one- I sent the decision to the rep with 2 pages of what I would do as far as getting an award on this claim-never heard from them at all.

I also wrote to the BVA about something like what you noticed years ago-

I got a nice letter from the BVA saying they would forward the info to the specific VARO that handled the claim-I forget what it was but something in a denied BVA decision prompted me to do this-

I think it was a vet who did not know he was under Nehmer and they did not consider one of his NSC conditions as due to AO exposure.

[Ricky]

Hey dawg - my bubble has been bursted many times. I think when I fell from the air I hit the ground with my head and that is what is wrong with me hahahahahahahahahahaha. Seriously just stating my opinion which comes from dealing with the dumb buts at my RO. Just knowing what they will require cuts the claim process in half. Not saying it is right but it is a fact of life. You brought up some good points and they will be filed away in the 1/3 of my brain that still functions.