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VA Disability for Gastrointestinal (GI) Disorders

  1. Organs and body parts of the digestive system
  2. What are gastrointestinal disorders?
  3. VA Service Connection for Gastrointestinal Disorders
  4. Common in-service causes of GI disorders
  5. Veterans and Hepatitis C
  6. VA Exams (C&P Exams) for Gastrointestinal Disorders
  7. Evidence for GI Disorder Claims
  8. Submitting new evidence under Appeals Reform
  9. VA Presumptions for Gastrointestinal Disorders and Cancers (Gulf War Illness Medically Unexplained Chronic Multi-sympton Illness (MUCMI) and cancers due to radiation exposure)
  10. Secondary Service Connection for Gastrointestinal (GI) Disorders
  11. What if you had your GI condition before service but service made it worse?
  12. VA Ratings for GI conditions
  13. How to avoid “pyramiding” multiple GI conditions
  14. Analagous Ratings (example: GERD)
  15. VA Unemployability (TDIU) for Gastrointestinal Disorders
  16. Common mistakes VA makes on GI Claims
  17. Things to remember when submitting your VA disability claim for a Gastrointestinal Condition

Video Transcription

Brad: Welcome and good afternoon from Chisholm, Chisholm and Kilpatrick. My name is Brad Hennings and this is Lindy Nash and Michael Lostritto and we’re here today for CCK live here on Facebook. And we’re gonna 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, Michael are attorneys who work here at CCK in our Veterans Law practice, and we’re gonna 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 disa—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 use the term IBS and GERD. What are those stands for?

Michael: So, IBS is– stands for Irritable Bowel Syndrome, and, and GERD, I wrote it down, just so I don’t mispronounce it, but it’s really Gastro Esophageal Reflux Disorder, esophageal rather. And so that’s what GERD stands for.

Brad: Okay, yeah, those are good. Those are the shorthand terms that we all use. And doctors particularly, typically us, but we 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? And 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 in 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 guard is due to that in-service event. So that third element really connects everything and loops it all together, and you present all three of those to VA, they, in theory, should grant 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 involved exposure to environmental toxins,   you know, different environmental factors.    we also see that veterans already service connected, perhaps anxiety disorder,   can further lead to digestive issues. And so that can be another route to seeking surface connection for a digestive issue.

Brad: So there, there are many different things that could possibly cause it from a veteran’s service.

Michael: Sure, tons of 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 a 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 there are– A lot of folks have many of those risk factors that may not have to do with service or have to service things like blood transfusions are 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 are used for various inoculations for service. It’s not a theory that VA accepts often. But we have certainly won cases with the jack on theory. And there are a number of practitioners out there who’ve 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, CMP exams and 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 CFP 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 oftentimes where private treating physicians will even review the CMP 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—the veteran should also point out where they feel there are inadequacies in the CMP 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 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 VA’s 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, bowel 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 a statement to show the severity of your condition.

Brad: So, staying with evidence, if a veteran need 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 acclaim. 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 in fact, with the supplemental claim lane 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 – 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, often through the 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 – what that involves?

Lindy: Yeah. 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 kinds of unusual symptoms. So that was everything, like Mike said, from gastrointestinal disorders,    headaches, fatigue, joint diagnosis, anything along those lines.   , so basically, they’re developed this area of the law called– we call it a MUCMI me. So Medically Unexplained Chronic Multi-Symptom Illness – it always gets me tripped up, 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, I tend to be your work. 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 the symptoms, but they can’t really be maybe specifically diagnosed or explained through, you know, medical geology.   , and so if you have one of these types of conditions, consider the fact– And you serve 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?

Michael: I believe there are certain    other their exposure related as well, and so certain exposures to different radiations I believe,

Brad: Okay

Michael: Those are other things where the law affords the veteran the opportunity to have their condition’s 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, what’s Secondary Service Connection?

Lindy: 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 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 your 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 increase severity in their condition service-connected. So basically, a veteran comes into service with a GI disorder, and their service causes the veteran’s condition to be aggravated,   then the veteran can also receive service connection for that, for that condition based on that theory.

Brad: Okay, so let’s get a little bit in 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 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 going to touch on this limited, but    VA– I’ll just, I’ll just jump right in breath. [Laugh] 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 codes, 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 and 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 roseroots 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, VA will rate the condition based on analogy, and oftentimes, they will look to diagnostic codes 7346 and rate it based on similar symptoms of a hernia. And so that’s just important to know, you know, because if you’re looking for the diagnostic code for the applicable rating criteria for, for GERD, you’re not going to find it.

Brad: Okay, so, what if your GI or digestive conditions somehow prevent 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 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 an 8940 and you are entitled as long as your service-connected conditions prevent you from working.

Brad: So I take a moment again to say this is Brad Hennings with Lindy Nash, and Michael Lostritto, we’re here at CCK Live. And we’re talking about gastrointestinal disorders and digestive diseases in the VA claim system. Again, please check us out on our webpage at cck-law.com, or leave us a message or otherwise contact us through Facebook, or any of the other media platforms that we’re 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 late 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 late 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, 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 trading 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 getting some assistance, get some assistance with your claimer appeal. Go find a veteran 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 can outline a number of different potential theories or ways about getting– you can go about getting service connection, make sure VA 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   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?

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’s 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 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 Lostritto, 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.

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