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IBS Decision Letter Jan 2021


KansasNavy

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Good Morning,

            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

30

Moderate; frequent episodes of bowel disturbance with abdominal distress

10

Mild; disturbances of bowel function with occasional episodes of abdominal distress

0

 

 

 

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

60

Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health

30

With two or more of the symptoms for the 30 percent evaluation of less severity

10

 

 

Redacted.pdf

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Since the VA clearly stated you fit into the 30% criteria,

I feel you should file a CUE claim ,because they made a legal error.

Did they pay you retro back to the 2015 claim?

I will prepare a CUE claim for you to file.

You can file a CUE as soon as you get any illegal decision- it does not matter if it is an award letter or denial.

If you have a VSO or agent representing you, don't allow them to tell you that you cannot file a CUE on a recent decision.

The regulations are here somewhere on that.

I had input into those CUE regulations via former Secretary Shulkin.

A successful CUE - filed immediately on a recent decision -whether award or denial-can stave off years in the long NOD,BVA process.

 

 

Edited by Berta (see edit history)
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BTW Congrats on this award-you seem to be a lifer ( 20 years of service )and if you ever get to 50% SC you will be eligible for CRDP as I under stand your post.

I suggest to direct the CUE to your VARO and put Attention to : the initials in the alphanumeric code on the top right hand side of the decision.

I suggest to hold off as others might have a different take on the CUE and they can respond.

Also this is a draft because I want to research some more today ,to see if they committed more than one CUE-

in any event:

This is a claim of CUE ( Clear and Unmistakable Error )in your ( date) decision.

It is filed under auspices of  38 USC, 5109A.

I claim that you violated 38 CFR 4.6:

LII Electronic Code of Federal Regulations (e-CFR) Title 38 - Pensions, Bonuses, and Veterans' Relief CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS PART 4 - SCHEDULE FOR RATING DISABILITIES Subpart A - General Policy in Rating § 4.6 Evaluation of evidence.

"38 CFR § 4.6 - Evaluation of evidence.

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

The decision clearly states

( on page 3, paragraph 3 I think but you can correct)***

that I fit into the 30% criteria,  not the 10% criteria ,regarding my service connected IBS.

The rating percent is not equitable or just, and does not conform with the rating schedule you assigned in regards to  the documented symptoms of constipation and diarrhea I have, that the decision acknowledges.

It does not comply with established "requirements of the law. "

I request a swift and proper correction of the rating and subsequent retroactive amount,that is consistent with the 30% rating under Diagnostic Code 7319.

Respectfully,

your name etc

*** ( I have always sent them the decision I have cued and highlighted with the parts that were legally wrong)

 

Edited by Berta
typo (see edit history)
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With your claim being in the legacy claim system (I assume given the date), I would follow what Berta said.  I, personally am also connected on IBS and GERD with esophageal spasms.  Mine is connected at 30%.  The IBS and GERD codes cannot be "stacked" as they fall under the same symptomology, but it's my understanding that you should be rated on the one that gives you the highest rating.  Mine states that I would be 10% on Hiatal Hernia (since that's what they rate GERD under) but 30% on IBS...so, they rate it at 30% given I meet the 30% criteria under the IBS rating.

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Berta, thank you for the quick response.  I did not get retro.  I think that may be correct because I don't know how I could prove that I was at least 10% disabled.  I read in GWS IBS that they can only SC it if it is at least 10%.  In my claim letter I didn't ask for an earlier effective date.  I might fight that battle later on.  More concerned with getting the right rating for now.  I have a very good VA Rep here on island Okinawa (its our early morning here) and he agrees they made a mistake.  He just wasn't sure what to do about it.  He has a connection at the DAV Muskogee VA hospital that he was going to ask about this.

I have never done a cue so am very appreciative for the help.  I will prepare the CUE you sent me and await anything further you find in your research.  Thank you

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Flow1972, I agree with what you said about taking the higher rating of the two.  It looks like in my decision letter they didnt do that.  It was actually kind of a dis-jointed decision letter.

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Berta, also I have looked all thru the decision letter and cannot find anyone's initials on any page left hand or right hand sign.  Do you think they forgot?

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Did you waive the retro so it would not lower your Military Retirement check?

 

Since you have a vet rep did he explain how SC affects a Military Retiree Pension?

"Concurrent Retirement and Disability Pay (CRDP) allows military retirees to receive both military retired pay and Veterans Affairs (VAcompensation. This was prohibited until the CRDP program began on January 1, 2004."

The CRDP info is in the link here:

https://www.dfas.mil/retiredmilitary/disability/crdp/

Flow is right and there is a regulation that supports what Flow stated.

Your vet rep probably had the same basic training I had from NVLSP and he would know what regulation Flow means.

He also seems to know VA made an error (CUE) and I suggest that he, since he holds your POA, should prepare the CUE claim for you, as he has more access to your records than I do.

He also should try to see if you have any other disabilities with SC potential.

Because, as he knows, you will need a 50% or higher SC rating to be eligible for  CRDP.

 

 

 

 

Edited by Berta
cloud problems with my internet (see edit history)
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To add, Military retirees can be eligible for unemployment compensation.

Your vet rep would know if you are eligible and he can give you more info on that

-or you can google Are Military Retirees eligible for Unemployment compensation and much will pop up. 

 

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All, so after talking with VSO in Pittsburgh and VSO here on island they recommended I do a supplemental instead of CUE since I had new additional evidence to submit.  Doctor put me on more medicine.  I submitted a supplemental just like I did last October with the new evidence.

However, when I opened my VA.gov account today it had the attached update.  It says they are doing an HLR by a Senior Rater. Is this verbiage what they would normally put in for a supplemental claim?  I had new evidence and submitted on a 20-0995 form as per VSO. 

I have had bad luck when asking for an HLR, so this makes me nervous because they say don't submit additional evidence.  New evidence is what I sent (medical records) in with the 0995. 

Is this normal or does this just sound like standard blurb?  I wanted them to take the new evidence into consideration which is why I did the 20-0995 and submitted thru the VSO.

Or did they do this because whoever looked at it found they make mistakes which is why I had originally thought it might be a CUE.  Any advice is greatly appreciated.  I know I will probably just have to wait for a denial letter in the mail.   

---------------------------------------------

A senior reviewer is taking a new look at your case

By requesting a Higher-Level Review, you asked for a senior reviewer at the Veterans Benefits Administration to look at your case and determine whether they can change the decision based on a difference of opinion or because VA made an error.

Note: Please don’t submit additional evidence. The reviewer will only consider evidence that VA already has.

The senior reviewer will make a new decision

The Veterans Benefits Administration will send you a new decision in the mail. Your review may take longer if VA needs to obtain records or schedule a new exam to correct an error.

 

VA Response.jpg

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First, you are relying upon an unreliable ebenefits and that normally does not work out well.  Your VSO has or should have VBMS access.  You should ask him if this was a SCL or HLR, because, the VA is correct in that HLR does not allow new evidence.  The VBMS file should be more accurate and give a better picture.  

I guess its already done, but I would not even think of listening to a "mere" VSO over Berta.  I see your 2 best choices being CUE, as Berta said, or appeal to the BVA.  

Here is the reason many Vets advocates "do not recommend" HLR/SCL:  Res Judicata.  

Quote
res ju·di·ca·ta
/rēz ˌjo͞odiˈkätə,ˈrās/
 
noun
LAW
 
  1. a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.
     
 
 

VA "justifes" the HLR/SCL by saying that "a senior reviewer (rater)" will go over it.  In reality, its real easy for them to say, Ok, I reviewed it, the answer is still no.  Remember, the junior rater and senior rater at your VARO "was probably trained" in a similar manner, sometimes by the same people!

Generally, I think HLR is a waste of time.  If you just go "direct" to the BVA, you have about 70-80  percent chance of remand or award.  

Cue is much tougher, but "can" be quicker than a BVA appeal, even tho both could accomplish the same result:  More benefits.  

Edited by broncovet (see edit history)
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