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.

[rdawg]

Hey Ricky,

I bumped this up because it is a good read. I don't think you or I offended anybody. I know you didn't offend me and I didn't offend myself.

rdawg

[Ricky]

Thanks - my intent with the nexus thing here is based upon my experience with my local RO. If it is there claims were simply flying through the rating process. IT AIN'T RIGHT NOR WILL IT EVER BE. However, after beating my head against the wall trying to help local GW vets it was just easier to give into to the VA wants.

I am sorry I did this. However, begining in the May time frame a couple of these GW claims were denied by the RO even with a "nexus" (civilain) IMO. This really pissed me off and made me see that if you give an inch they will want a mile. At that point I decided NOPE, NO MORE THE LAW HAS SAID PRESUMPTION APPLIES IN THESE CLAIMS. So since that time I have earsed the thought of nexus IMO from my brain and body. THE PRESUMPTION IS THE NEXUS! Since then I have stood on my head, shouted and kicked and spit to get GW vets to force the confused RO's to properly apply the law. Sorry I slip and began giving in to their ways, but I have seen the light now and become a reformed man! hahahahahaha That is why I was so strong in the other post about no nexus letter.

I have begun recommending that GW vets put into the form 9 under the section of their appeal where you tell the board what you feel is wrong with the decision, that laws and 38 CFR have not been properly applied in this claim by the RO which provides an avenue for a claim of CUE which will be used to correct this problem. Most Ro's, I know ours does, at least reviews, very quickly, the form 9 before certifying it to the board. This tends to catch their attention and usually results in the issuance of a new positive decision based upon "a different opinion of the facts of the claim". Things that make you go Hmmmmmmmmmmm.

[rdawg]

Nice reply Ricky.

You said

"usually results in the issuance of a new positive decision"

that's what I like to hear. It gives us hope.

[jmlo]

This is absolutely outrageous!! I can't believe the double talk in this! Why would they call it a "gastrointestinal disability" at one point and "IBS" at another? To pull the 'ole 'diagnosed' 'undiagnosed' switcheroo? I wouldn't let them get away with this.

Their own regs clearly state that IBS IS an undiagnosed illness ~ even though the doc diagnosed it, according to the REGS, it is a chronic multi-symptom illness defined by a cluster of signs or symptoms. DUH!

I really don't think that having your doctor state that it is "more likely than not service connected" will mean anything. The VA doctor wrote that in my husband's records and the statement of case came back denying SC ~ stating that even though the doctor said that, he didn't base his opinion on a review of the medical records. WHAT?!?! The VA doctor didn't look at the VA medical records? Are you kidding me?!

Does anyone know who these raters are? What qualifications do they require someone to become a rater? Yeah, one brain cell, I know ~ but really? ;)

"In the present case, the evidence of record irritable bowel syndrome; 38 C.F.R. § 3.317.

</SPAN>

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]

jmlo - if things are not resolved at the RO for you make sure you attack every bad point in the SOC with your form 9. Your statement - he didn't base his opinion on a review of the medical records. WHAT?!?!- should be attacked with vigor. You surely have the right mindset and direction with this issue and I feel that you will be successful in the end - it is just a question when the end will occur. Keep us updated with the processing of your claim.

[rdawg]

jmlo,

You've already had your DRO review, the DRO is supposed to be more senior and experienced then the rater who made the CUE in the original decision. I would call the RO and ask for the name of the DRO who reviewed your decision. I would then call, show up, knock down the doors and make it clear to this person that the condition is a presumtive condition and does not need a nexus opinion from the doctor. So wether or not he reviewed the claims folder is a moot point, it doesn't matter. You served in SW ASIA during the GW and you have a diagnoses of Fibromyalgia. That's it SC should be granted. The only thing that may be missing is if it is not 10% disabling at this point. You haven't discussed that yet.

rdawg