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.

[jmlo]

Yes, more than 10% disabling. He went from 16/18 tenderpoints 6 mos ago to 18/18 tenderpoints last month. It continues to get worse for him.

Well, that is what we will do. You know, we have also tried to contact through IRIS for generic status questions and we have NEVER received a response back. Does anyone have any luck with IRIS?

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