VA Disability for Gastrointestinal Disorders & Digestive Diseases
Brad: Welcome and good afternoon from Chisholm Chisholm and Kilpatrick my name is Brad Hennings, and this is Lindy Nash and Michael Lostrito, and we’re here today for CCK live here on Facebook, and we’re going to be talking a little bit about gastrointestinal disorders and digestive diseases in the VA claims process Before we get going if anyone has any questions, please contact us through Facebook live leave a comment If you’re watching this after the fact come to our Facebook page or our website at cck-law.com and we’d be happy to Try to answer any questions that you might have So both Lindy and Mike or Michael are attorneys who work here at CCK In our veterans law practice, and we’re going to get going with a little bit about this topic So which organs and body parts are part of the digestive system? Lindy: Sure. So basically it’s any organ that has to do with the digestive tract or any accessory organ that aids in Digestion so that could be anything from your mouth down through your esophagus to your stomach large colon small intestine rectum everything in between so it really encompasses a large group of organs and disabilities.
Brad: And what we’re focused on here are veterans who and/or their dependents who are suffering from disabilities in any of these systems so with that what are gastrointestinal disorders? Michael: So some of the more Common ones that we see here are we see IBS constipation colitis GERD and as Lindy was mentioning these really are the Disorders that involve organs that aid in a veteran’s digestive process So those are just some examples but there really are a number of different types of conditions Brad: So you used the term IBS and GERD. What do those stand for? Michael: So IBS stands for irritable bowel syndrome And and GERD, I wrote it down because I always mispronounce it but it’s really gastro esophageal reflux disorder or disease, rather And so that’s what GERD stands for. Brad: Okay. Yeah, those are good Those are the short hand turns that we all use and doctors particularly used But I just want to make sure we’re all on the same page with what we were talking about So let’s talk a little bit about service connection in the VA system. So what is service connection? What do you need to show for a GI or digestive disorder? Lindy: sure So service connection generally speaking is kind of VA acknowledging that your disability is due to service and Probably the most popular or what most people think of for service connection The first way is called direct service connection and for direct service connection. You really need three elements You have to show three certain things for VA to grant your claim for service connection. So that first element would be a diagnosis so in this condition in this case You have to show that say you have a diagnosis of GERD or colitis or IBS any of those Gastrointestinal disorders so you need a diagnosis. Number two element would be an in-service event So there has to be something during your time and service that you can point to and say You know, I have GERD because of this occurrence in service. And then the third element is what we often call the nexus opinion So that’s really typically from a physician and they would be saying that your GERD is due to that in-service event So that third element really connects everything and loops it all together and if you present all three of those to VA. They In theory should grant you service connection Brad: Okay. So Mike what are some common in service causes of these GI conditions digestive conditions? Michael: So there are a number But I think one of the primary ones that we see here involve exposure to environmental toxins You know different environmental factors We also see that a veteran’s already service-connected perhaps anxiety disorder Can further lead to digestive issues and so that can be another route to seeking service connection for a digestive issue Brad: So there are many different things that could possibly cause it from a veteran service. Michael: Sure tons, you know water contamination exposure to different Particulate matter so there it really runs the gamut but those are some examples for sure Brad: So one of the other disabilities that’s included in this category is hepatitis C and that is of particular concern to the veteran community because of the high incidence of veterans who suffer from hepatitis C. Now in the VA claims process it can be difficult to show that your hepatitis C was due to service because they typically Will look to any risk factors is what they call them for getting Hepatitis C and in service a lot of folks have many of those risk factors that may not have to do with service Or have to do service things like blood transfusions or tattoos In particular VA will often deny claims because they’ll say that the veteran either was an intranasal Cocaine user or a heroin user using dirty needles and that’s how they likely got Hepatitis C. However, there is a plausible and proven connection between jet guns and Hepatitis C jet guns were used for various inoculations for service It’s not a theory that VA accepts often But we have certainly won cases With a jet gun theory and there are a number of practitioners out there who have been very successful with that So that’s just something to keep in mind Don’t assume that even if VA has denied your hepatitis C claim that you’re not actually entitled to benefits. So moving on Let’s talk a little bit about examinations what they call compensation examinations or compensation and pension C&P exams in VA How do they work for These GI and digestive conditions? Lindy: Sure So sometimes VA will ask you to undergo one of those typical procedures that you think about with gastrointestinal Disorders maybe colonoscopy or endoscopy, but that’s not too often So typically the C&P exams will be a little bit less invasive than that It’s more questions to see the severity and the symptoms that go along with your gastrointestinal disorder So that could be everything from asking you about weight loss to maybe the frequency of your bowel movements Any kind of symptoms and the severity that go along with those symptoms I have seen blood tests before so maybe they’ll order a blood test and look at those numbers So it’s really mostly questions based on the severity of the symptoms that you have Brad: So Mike what can you do if you get an unfavorable Medical opinion from your VA examiner and or you feel like that examiner has not accurately captured the severity of your symptoms? Michael: Sure, so Veterans are allowed to and encouraged to really challenge compensation and pension examinations that they feel are inadequate in other words, they didn’t capture really the severity or The condition in the way that it actually presents They can also they can go to a treating private physician if they have one and they can supplement the record With their own opinion to address and contradict maybe the opinion that was offered by the VA examiner You know, we see often times where private treating physicians will even review the C&P examination That was conducted and you know make opinions based on that. So that’s that’s allowed and that’s encouraged And like I said, they can a veteran should also point out where they feel There are inadequacies in the C&P exam Brad: So getting into we’ve talked a little bit about the medical evidence What other kinds of evidence can you include in your claim for a GI condition? Lindy: Yeah so definitely we recommend submitting any lay evidence that you may have so that could be a statement from you maybe a statement from your partner or A family member as Mike mentioned you can obviously submit a private physician opinion But that lay evidence can be really crucial because a lot of these diagnostic codes for gastrointestinal Disorders are very much severity based and are very much based on symptoms that you yourself are competent to opine on so You know if you keep a diary of certain You know file movements or any symptoms that you’re having throughout the day by submitting those that really demonstrates how severe your condition is and you are competent as a veteran who is experiencing these symptoms to opine on things like that like The number of times you have a symptom or something that you’re feeling on a day-to-day basis So we definitely recommend submitting any kind of lay statement to show the severity of your condition Brad: So staying with evidence if a veteran needs to submit new evidence with an appeal What should he or she know about the new appeals process the Appeals Modernization Act? Otherwise known as Appeals reform or AMA. Michael: Yeah, and this is a very important point as I think most of you know recently, there’s a new There was a new VA procedural system put in place It doesn’t affect the substantive diagnostic criteria for evaluating these digestive conditions but it does affect the really the procedural aspect of appealing a claim and so Veterans will now need to choose from a few different lanes To appeal their case and so if a veteran is looking to submit new evidence They’re going to need to select what’s called the Supplemental claim lane Or they can also directly appeal to the board and select the evidence docket but those lanes allow for and in fact with the Supplemental claim land require the veteran to Introduce and submit new and relevant evidence with respect to their claim Brad: Okay, so we’ve gone through some different kinds of evidence regarding GI and digestive claims. Let’s talk let’s shift gears a little bit and let’s talk about what a Presumption is in the VA system and whether there are any presumptions for GI and digestive conditions Michael: So a presumption basically is Recognition of the fact that in some situations veterans will just not have the evidence specific to their case to establish That their condition was related to service. And so what the law with VA law allows is that in certain situations Veterans of a certain class can show or Rather VA will grant service connection for those conditions based on the fact that maybe a veteran served in a particular area at a particular time So for instance as it relates to digestive disorders Veterans who served in the Persian Gulf War from approximately August 1990 actually up until the present day could potentially have some of their digestive conditions service-connected on what’s called a presumptive basis meaning they don’t need to show Individualized evidence with respect to their condition that shows their condition was caused by service Brad: Okay Can you give me a little bit more detail on that Lindy on you know what that involves? Lindy: Yes, so just to go off of what Mike was saying Different Persian Gulf veterans started coming back with the symptoms that really were unexplained. There was no Diagnosis that went along with these kind of unusual symptoms. So that was everything like Mike said from gastrointestinal disorders headaches fatigue joint diagnosis anything along those lines so basically They’ve developed this area of the law called– we call it a MUCMI– so medically unexplained chronic multi-symptom illness It always gets me tripped up But otherwise known as a MUCMI and so basically you can get any of these kind of not random but certain symptoms Service-connected without a certain diagnosis and recently there was a case last year I believe was last year Atencio v O’Rourke and the court came out and said that GERD is one of the one kind of gastrointestinal conditions that is not considered to fall under the MUCMI category so GERD is not included but other conditions such as IBS nausea vomiting diarrhea constipation that All would be included because those are known as functional impairments. Michael: And again, these are for veterans who served in the Persian Gulf War From 1990 up into the present that have these symptoms, but they can’t really be maybe specifically diagnosed or explained Through you know medical etiology and so if you have one of these digestive conditions consider the fact and you served during this period of time in this location consider this as a potential avenue for seeking service-connection on a presumptive basis. Brad: Are there any other examples of presumptions related to GI conditions? I believe there are certain Other exposure related as well and so certain exposures to different radiations, I believe those are other things where the law affords the veteran the Opportunity to have their conditions service-connected despite the fact that they may not be able to actually show evidence of being exposed to different radiation Brad: Okay, and so that has to do with what they call the radiation risk activity that they Participated in during service. A lot of veterans were exposed to radiation through nuclear testing through their various service Circumstances and So there’s a number of cancers that VA will presume are due to that exposure if the veteran can show that they were exposed at Any point Moving along. So what’s secondary service connection? Sure. So secondary service connection. I alluded a little bit earlier that there are different types of service connections So we already talked about direct with the three elements secondary service connection basically means that you already are service connected for some condition and But for that condition you wouldn’t have developed another so that was kind of a confusing way to say it basically one service-connected condition Causes another condition and therefore you can get that second condition service-connected so some frequent secondary service connection We see with gastrointestinal disorders would be maybe you’re service-connected for anxiety or PTSD And that caused you to develop IBS or constipation or diarrhea something along those lines so you can get that Gastrointestinal disability service-connected due to another service-connected disability Brad: Okay. So what if you had a GI condition before service but service made it worse? You’re suffering from IBS or GERD But once you got into service It really started bothering you? Michael: And this is an example of another Avenue available to veterans to get the increase In their condition the increased severity in their condition service-connected So basically if a veteran comes into service with a GI disorder and their service causes the veterans condition to be aggravated Then the veteran can also receive service connection for that condition based on that theory Brad: Okay, so let’s get a little bit into how the VA rates these disabilities so how does VA rate GI conditions and sort of organize what they call the Diagnostic codes in the rating schedule. Lindy: Yep. So first things first, you should look at 38 CFR 4.114 and so that has all digestive system Disabilities in that section of the rating criteria. So within that there are multiple diagnostic codes that list many different types of digestive Disabilities. So that’s everything like we’ve said from IBS to colitis different large intestine conditions any all those different things to even think of so those are all listed within the diagnostic code and they’re all Rated a little bit different. So based on different symptoms, you can get a different rating So I would definitely suggest looking up your condition to see what the diagnostic code actually says about that condition and I know that I think we’re gonna touch on this limited but VA. I’ll just I’ll just jump right in, Brad so VA doesn’t like to do something called pyramiding and so pyramiding basically means that they’re not going to Double compensate you. So they do not want to pay you twice for something that you already have So a lot of these conditions actually you should be aware of the fact that they will not rate you Twice so like for instance diagnostic code 7301 through 7329 if you have multiple Diagnosis of those conditions, they’re not going to compensate you for each of them. They will likely only pick one whichever one Displays your disability picture the best and rate you under that and that is to prevent something like pyramiding where they are paying you Twice for the same condition or the same set of symptoms Brad: So they don’t want to double count or deal with overlapping symptoms because so often these symptoms overlap. Lindy: Yes, exactly Yeah, so a lot of these digestive conditions have similar symptoms or you’re experiencing similar things So they’re not going to pay you twice for the same symptoms. Brad: So staying with rating, so we’ve talked a little bit about pyramiding and how we don’t want to do that But what are what they call Analogous ratings and how does that work in the VA system in particular with GI and digestive disorders? Michael: So not every type of condition that a veteran may have is captured by a diagnostic code and so when the situation occurs where a veteran has a condition which doesn’t have its own specific diagnostic code listed in the Disability rating schedule, what happens is that VA will rate that condition based on what they call an analogous rating And so what they’re really trying to do is take a look at the symptomatology of your condition and match it up with whatever Diagnostic code best fits your symptoms and so they will go ahead and then rate you under that specific diagnostic code. How that plays in the realm of dealing with GI conditions is that a very common condition is as we talked about earlier GERD and That interestingly enough does not have its own diagnostic code and so for that specific condition, the VA will rate the condition based on analogy and Oftentimes they will look to diagnostic code 7346 and rated based on similar symptoms of a hernia And so that’s just important to know, you know Because if you’re looking through the diagnostic code for the applicable rating criteria for for GERD, you’re not going to find it okay, so what if your GI or digestive conditions somehow prevents you from being able to work? Lindy: Sure so I would Suggest raising TDIU in that case. So TDIU is basically something that you can Apply for and you are entitled to it. If you are service-connected conditions do not allow you to obtain and maintain Substantially gainful employment. So we see this all the time, especially with GI conditions, you know Maybe you need to go to the bathroom several times a day And it doesn’t allow you to sit at your desk and do your nine-to-five job and take those typical, you know 15-minute breaks once or twice a day. So if that does not allow you to work you can raise tdiu within your increased rating claim or you can file for it with a VAForm 21-8940 and you are entitled as long as you’re Service-connected conditions prevent you from working. Brad: Just wanna take a moment again say this is Brad Hennings with Lindy Nash and Michael Lostrito We’re here at a CCK live and we’re talking about Gastrointestinal disorders and digestive diseases in the VA claim system again, please Check us out on our web page at CCK – law.com Or leave us a message or otherwise contact us through Facebook or any of the other media platforms that were on. So with that what are some of the common mistakes that VA is making when they’re adjudicating these GI and digestive disorder claims. Michael: Yeah, and we talked about earlier the importance of submitting lay testimony and so one of the common pitfalls unfortunately Is that VA will oftentimes overlook or discredit or discount a veteran’s lay testimony with respect to the severity of their GI condition and so if you receive a decision and in your decision, you notice that they didn’t take into account the fact that You’ve submitted multiple statements or you know a statement that really goes into detailing the severity of your condition If they didn’t take that into account in rating your condition, you may want to take a look at potentially appealing Based on the failure to consider that lay testimony Brad: Okay, and then sort of wrapping up a lot of what we’ve talked about here today What are some things that veterans should remember when submitting a claim or an appeal for one of these conditions? Lindy: Sure, I think if you have an opinion from a private physician or if you’re just treating with a private physician I think it can be really helpful to ask that person for an opinion because VA as you mentioned before they don’t always order those expensive tests like x-rays or colonoscopies endoscopies so if you have a private physician who’s already diagnosed you with a condition I would definitely suggest submitting that opinion from them which clearly states that you have GERD or IBS that can go a really long way and that way you don’t have to wait for VA to collect that evidence or you may not Have to deal with VA giving you a negative exam. You’ve already submitted it– it’s clear as day that you have whatever Diagnosis you’re alleging that you have so I would definitely suggest submitting a private physician statement if you have one Brad: One of the things that I would also suggest is get some assistance get some assistance with your claim or appeal. Go find a veteran’s service organization like our partners at the Disabled American Veterans (DAV) Find a VA-accredited attorney or VA accredited agent to help you craft your claim craft your appeal to ensure that you have the greatest Chance of winning your case. Any last words on this topic Mike? Michael: I would just say, you know We’ve kind of outlined a number of different potential theories or ways about getting you you can go about getting service connection Make sure the considers all of them that might potentially be applicable to your case So it’s not enough for them to consider direct service connection and say that you know There was nothing in service that directly led to your GI condition you know if you served in the Persian Gulf War if you have other service-connected disabilities that could potentially have caused or contributed to a GI condition VA is really required to consider all the different potential theories and discuss them in a decision so, you know, it’s incumbent upon you and incumbent upon your representative to make sure that VA is doing its job and considering all theories of service connection Brad: Lindy? I guess I know I just talked about private physician opinions but on top of that it’s really important that you submit lay evidence as well because as we said a lot of the Diagnostic codes are based on the severity of your symptoms And there are certain things that you can attest to. So I know some of this isn’t you know The most comfortable to talk about but now is not the time to be shy tell VA what’s going on, you know keep a diary of what you’re experiencing every day and submit that because that is Really important and make sure that VA considers all of that evidence Brad: That’s great. I echo both what Mike and Lindy said in terms of things to think about and final thoughts Thank you for joining us this afternoon Again, this is Brad Hennings with Lindy Nash and Michael Lostrito, we’re here at Chisholm Chisholm and Kilpatrick Please check us out on the web CCK-law.com Check us out on Facebook. Leave us messages contact us if you need anything. Thank you and have a great rest of your day