IBS Decision Letter Jan 2021

[KansasNavy]

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

[Berta]

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 January 14, 2021 by Berta

[Berta]

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 January 14, 2021 by Berta
typo

[flow1972]

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.

[KansasNavy]

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

[KansasNavy]

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.

[KansasNavy]

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?