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Attached is my Decision Letter. I think they may have made a mistake.
Background: Retired 2014. Claimed IBS in 2015 but was denied due to no diagnosis. Didn’t fight it. Starting in 2017 to today started having more and more issues. Was diagnosed in 2017 with IBS by Doctors at Naval Hospital.
Leads us to Decision letter
Oct 29, 2020 – Requested IBS Service Connection via Gulf War Syndrome 38 C.F.R.3.17
1. Received Decision Letter today 13 Jan 2021.
2. A 10% evaluation is established for IBS and added to the previously established non-compensable evaluation for hiatal hernia/GERD (I did not ask for this or ask to be reevaluated for hiatal hernia. I realize they often combine the two.
3. Examiner provided opinion that current disability is at least as likely as not (50% or greater probability) incurred in or caused by the in-service Injury, event or illness.
4. Service Connection established. Huge Win
However, I think they may have made a mistake.
1. On page 3 of decision letter:
a. Paragraph 1 – Hiatal hernia warrants non-compensable evaluation
b. Paragraph 2 – Irritable colon syndrome warrants 10% - Moderate symptoms
c. Paragraph 3 – Additional symptoms – Alternating Diarrhea and Constipation
d. Paragraph 4 – I don’t understand what this means
e. Paragraph 5 – they agree and state that I do have alternating diarrhea and constipation in my records. I also have constant bloating and gas in my records as well.
f. Paragraph 6 – Hiatal Hernia 0% I agree with, No argument. I wasn’t trying to get an increase.
g. Paragraph 7 – A higher evaluation of 30 percent is not warranted for IBS unless there are severe symptoms demonstrated by diarrhea, OR alternating diarrhea AND constipation, with more or less constant abdominal distress.
i. In Paragraph 5, they already agree and state that I do have alternating diarrhea and constipation.
ii. Alternating diarrhea and constipation is the epitome definition of MORE OR LESS CONSTANT ABDOMINAL DISTRESS.
h. Paragraph 8 – Deals solely with the Hiatal Hernia/GERD evaluation
2. I feel like when they combined the two 7319 & 7346 codes which they often do, I understand that however I clearly meet the Irritable Colon Syndrome of 30% evaluation in paragraph 7. See below as well.
3. But when they combined both codes they make it seem like I have to have the other Hiatal Hernia/GERD symptoms as well to qualify for the 30% 7319 IBS Rating.
4. Wanted to get some advice before I figure out how to proceed.
7319 Irritable colon syndrome (spastic colitis, mucous colitis, etc.):
Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress
Moderate; frequent episodes of bowel disturbance with abdominal distress
Mild; disturbances of bowel function with occasional episodes of abdominal distress
7346 Hernia hiatal:
Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health
Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health
With two or more of the symptoms for the 30 percent evaluation of less severity
So, I am SC'd on GERD 10% and IBS 30% which they grant at a 30% combined rating since (according to the VA) codes 7319 and 7346 (Hiatal hernia is what they use for GERD) fall in the inclusive rating categories according to this:
Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.
I would argue that, that's not what that says..
It actually says codes 7301 - 7329 are inclusive and then
7331. 73342, and 7345 - 7348 are inclusive
which would actually mean codes 7319 and 7346 are in their own categories and should be rated exclusively.
However, my actual question is about code 7204 Esophagus, spasm (cardiospasm). I submitted a claim for this, but it was not rated separately. Instead, I was given:
Evaluation of IBS and GERD with esophagus spasm of (cardiospasm) (claimed as esophageal condition):
The evaluation of IBS and GERD with esophagus, spasm of (cardiospasm) (claimed as esophageal condition) is continued as 30 percent disabling.
We have reviewed the evidence received and determined your service-connected condition(s) hasn't/haven't increased in severity sufficiently to warrant a higher evaluation. We have continued a 30% evaluation for your IBS and GERD with esophagus, spasm of (cardiospasm) based on:
-Alternating diarrhea and constipation
Additional Symptoms Include:
-Disturbances of bowel function
-Frequent episodes of bowel disturbance
This is the highest schedular evalution allowed under the law for IBS. (38 CFR 4.114)
A higher evaluation of 60% is not warranted unless there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. (38 CFR 4.112, 38 CFR 4.113, 38 CFR 4.114)
A 10% evaluation would be warranted for your GERD with esophagus, spasm of (cardiospasm) (claimed as esophageal condition) based on:
-Pyrosis (Heartburn and/or Reflux)
-Persistently recurrent epigatric distress
A higher evaluation of 30% is not warranted for hiatal hernia unless the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. (38 CFR 4.114)
Ratings under diagnostic codes 7301 to 7329, inclusive, 7331,7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with the elevation to the next higher level evaluation where the severity of the overall disability warrants such evaluation. (38 CFR 4.114)
So in reading that, I do not see how
7204 Esophagus, spasm of (cardiospasm).
If not amenable to dilation, rate as for the degree of obstruction (stricture).
falls in to that rating criteria. Does anyone have any experience in getting a separate rating for 7204? I'm now at 92.23% SC'd with 1 rating on appeal and an increase on remand. Both of which (if granted at what the reg actually says) would kick me to 95.29% (or rounded to 100). This one, I really expected to be at 30% on its own...so I'm confused as to why it was rolled in to another rating.
All, Taking everyone's advice, I put together my letter that I plan to submit with my claim. I think it would be a supplemental claim since they denied me in 2015 due to no diagnosis. I typed out my history and included notes from my medical records. If someone has time, can you read thru it and give me an honest opinion? I used Blast Daddys advice for the presumptive piece. Anything you would add or change or that I am missing? We don't have VSOs out here in Okinawa so working on this by myself. I redacted names.
I also have to submit the medical records from 2014 to Present but the files are huge. Can you upload then electronically or will I have to use snail mail?
Claim for IBS Presumptive to GW Redacted.docx
I am beyond frustrated right now!!!! My claim is now preparation for decision and my fear is that it will be denied and I will have to appeal. I filed for my non-service connected Fibro as caused or aggravated by the service connected IBS and/or service connected PTSD on an as likely as not basis. See my screen shot attached of my original claim in July 2018. I had my first C&P exam in September 2018 and it was negative based on the examiner stated there was no causation of my s/c PTSD to my Fibro. See the screen shot below. I will note that he did a separate C&P exam for Fibro and agreed I had Fibro. Never looked at aggravation and never looked at the possibility of IBS. I sent a statement in support of claim pointing this out to the rater. I get another C&P exam in December 2018 BUT by now I have THREE positive medical opinions from BOTH my RA and MH doctor. Both state my Fibro is aggravated by my PTSD and my MH doctor also states my Fibro is aggravated by my IBS. SEE ATTACHED 2 of the 3 letters.
When I went to the second C&P exam, it was with the same doctor and he refused to look at the medical opinions. He also once again did not look at aggravation. Again a negative C&P exam.
Then the rater asked for clarification/review of conflicting medical opinions. Here is what the rater asked, Per III.iv.3.D.3.a. and III.iv.3.D.3.d. We need clarification/review and reconciliation of conflicting evidence for claim for fibromyalgia secondary to SC PTSD. Negative MO received on 09/28/2018 (TAB A) stated that fibromyalgia was not secondary to PTSD. Received positive MO on 12/05/2018 (TAB B) relating fibromyalgia as secondary to SC PTSD and IBS. Negative MO received on 12/05/2018 (TAB D) stated that fibromyalgia was not secondary to IBS. Examination dated 12/05/2018 (TAB C) shows a diagnosis for fibromyalgia. Per reference please request clarification of conflicting MO for fibromyalgia as secondary to PTSD and IBS with rationale.
This medical opinion was done last week w/o me present and once again the medical opinion was negative and doesn't address anything the rater asked. In fact, his statement is laughable. While he states he reviewed conflicting medical evidence, he sites PT notes and doesn't refute the positive medical opinions.
Here is what it says: I HAVE REVIEWED THE CONFLICTING MEDICAL EVIDENCE AND AM PROVIDING THE FOLLOWING OPINION:
All medical records were reviewed. Physical therapy note on 8/15/2018 by XXXXX documents diagnosis of fibromyalgia and PTSD. The exact cause of fibromyalgia is
unknown but has associations with IBS, temporomandibular joint disorder, interstitial cystitis, vulvodynia, and tension headaches. Literature review reveals fibromyalgia along with
its associated pain syndromes are clearly different and separable from depression and anxiety. The claimant's fibromyalgia is not secondary to the claimant's claimed PTSD
The VA continues to miss the fact that I asked in my original claim either causation or aggravation. So on Monday, when I went to PFD, I sent the attached statement and uploaded in Ebenefits pointing out once again they are not looking at aggravation.
My rep said if it comes back denied, which I am sure it will, we will file an NOD pointing out the fact that they are missing aggravation.
MH positive opinion.pdf
RA positive medical opinion.pdf
rebabevets posted a question in VA Disability Compensation Benefits Claims Research Forum,I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently
Ddsr posted a question in VA Disability Compensation Benefits Claims Research Forum,The 5, 10, 20 year rules...
Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.
Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.
Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.
If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"
At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.
NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.
Example for 2020 using the same disability rating
1998 - Initially Service Connected @ 10%
RESULT: Service Connection Protected in 2008
RESULT: 10% Protected from reduction in 2018 (20 years)
2020 - Service Connection Increased @ 30%
RESULT: 30% is Protected from reduction in 2040 (20 years)
broncovet posted an answer to a question,While the BVA has some discretion here, often they "chop up claims". For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.
I hate that its that way. The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!
My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.
Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
Joey Ross posted an answer to a question,I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and nothing about stressor,
Picked ByJoey Ross,