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    • You are seeking Extraschedular Consideration. Extraschedular Considerations   “In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321  (2015).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. “ Thun v. Peake, 22 Vet. App. 111 (2008).   But the VA will not act on any TDIU application from a veteran who is still employed.   I know two local people who have severe hearing loss yet also have severe communication problems because of the HL. They both get SSDI on that basis. They both wear hearing aids but it is very difficult to understand what they say sometimes, and one almost got hit by a pallet truck on her last job, because she could not hear it coming towards her. She was laid off and applied and received SSDI.   I suggest, when you do become unemployed, to apply for SSDI right away because, if the SSA awards solely for your SC conditions, then the VA would have evidence that would establish TDIU. The SSA has a SSDI web site that might have the criteria for Hearing loss claims and how they determine speech factors due to HL.    
    • A few months ago my service connected hearing loss  was increased from; 10% tinnitus
      20%  Bi-Lat hearing loss
      30% total to 10% tinnitus
      50%  Bi-Lat hearing loss
      60% total While I do not meet the single disability percent to apply normally needed to apply for IU, I do see a "Special Consideration"  which I believe applies in my case"  http://benefits.va.gov/benefits/factsheets/serviceconnected/iu.pdf Below is my letter asking for my increase.  I was wondering if anyone could give me some feedback on the content in order to determine of I should even bother to apply for UI ?   BTW, I will be 57 years old on December 1st, of that matters?  Thanks in advance, Mark   *********** 3/17/2016 Department of Veterans Affairs
        I am respectfully requesting consideration for an increase in my current Service Connected Bilateral Hearing Loss rating based on VA Autonomic re-evaluation dated 2/16/16, performed by XXX Snyder, MS, Audiology which included Maryland CNC word recognition testing, conducted at the VA Audiology Clinic, 760 XXXX Avenue, XXX Ca. 96001 (530) XXX-8830.       History:   I am currently rated at 20% Service Connected Bilateral Hearing Loss and 10% Service Connected Bilateral Tinnitus, dated 3/8/2011.  The details and evaluation of that service connection are documented in my VA file number XXX XX XXXX.     Continued and ongoing issues:   Based on my ongoing occupational, Retail Store Manager and non-occupational hearing problems, which include but not limited to;   Understanding and or comprehending spoken words
      Understanding and or comprehending telephone, conference call conversation and intercom announcements
      Understanding and or comprehending MIS helpdesk, police and other government or municipal telephone conversations.
      Understanding and or comprehending streaming television, computer, radio or other electronically produced broadcasts.
      Communicating in moderate to noisy environments, including retail store operations.
      Communicating with a group of individuals, including retail store operations, staff meetings and training.
      Communicating using retail store, company provided two way radio handsets.
          My service connected hearing problems, severely limits my ability to applicably react to audible occupational signals from:   Building alarm, emergency warning and other electronic security systems
      Fire and Loss prevention alarm / notification systems
      Point of Sale alarm / notifications and alert systems
      Point of Sale scanners; Symbol DS9808, Motorola LS2208,
      Inventory management scanner; Symbol MC3100
      EAS Loss prevention entry/exit scanners
      Refrigeration / Freezer malfunction notification systems
      Environmental systems (heating/cooling) notification systems
      Energy management systems NOVAR notification systems
      Freight delivery truck, backup warning notification systems
        My service connected hearing problems have resulted in:   My inability to efficiently communicate with friends, acquaintances, family, customers, vendors, subordinate employees, peers and supervisors.
      Frequent outsourcing or shifting of my normal and personally assigned managerial functions that require high amounts of communication, to my subordinate managers.
      Personal, occupational and social withdrawal due to reduced access to services and difficulties communicating with others.
      Experiencing significant emotional problems caused by a drop in my self-esteem and professional confidence.
      Exacerbation of my VA diagnosed PTSD, that I am currently being treated for at the VA XXX VA Behavioral Health Department.     Recent VA recommendations and action by XXX Snyder, MS, Audiology:   Since my recent VA Autonomic re-evaluation which included Maryland CNC word recognition testing, dated 2/16/16, I have been issued and subsequently fitted with updated VA issued hearing instruments: PHONAK AUDEO V90-13 RIC to replace my previous hearing instruments: AUDEO SPICE SMART IX UZ RIC.  I have also been issued and fitted with a Remote Control, ComPilot II and Remote Microphone in order to specifically assist with my occupational communication problems.  Mr. XXX Snyder explained to me that the new hearing instruments will provide a longer usable service life for my substantial and difficult to manage hearing loss.   ***************** Below is the actual examine results: 1. Objective Findings --------------------- a. Puretone thresholds in decibels (air conduction): RIGHT EAR +==============================================================+ | A | B | C | D | E | F | G | |========+========+========+========+========+========+========+========+ | 500 | 1000 | 2000 | 3000 | 4000 | 6000 | 8000 | Avg Hz | | Hz* | Hz | Hz | Hz | Hz | Hz | Hz | (B-E)**| |========+========+========+========+========+========+========+========| | 30 | 50 | 75 | 85 | 95 | 105+ | 100+ | 76 | +=======================================================================+ LEFT EAR +==============================================================+ | A | B | C | D | E | F | G | |========+========+========+========+========+========+========+========+ | 500 | 1000 | 2000 | 3000 | 4000 | 6000 | 8000 | Avg Hz | | Hz* | Hz | Hz | Hz | Hz | Hz | Hz | (B-E)**| |========+========+========+========+========+========+========+========| | 35 | 50 | 70 | 80 | 85 | 105+ | 100+ | 71 | +=======================================================================+ * The puretone threshold at 500 Hz is not used in determining the evaluation but is used in determining whether or not a ratable hearing loss exists. ** The average of B, C, D, and E. *** CNT - Could Not Test b. Were there one or more frequency(ies) that could not be tested: No c. Validity of puretone test results: Test results are valid for rating purposes. d. Speech Discrimination Score (Maryland CNC word list): +=======================+ | RIGHT EAR | 56% |   Thank you,   Mark Nicholson
                   
    • Thanks for the help!  I am happy to report that in less than 2 weeks from contacting the Secretary, my back pay was deposited into my account.  Still waiting on the back pay from the latest increase, but its only been a couple of months.  I will give them a little time.
    • There's  no known medical reason for tinnitus  but usually hearing loss and tinnitus goes hand in hand there are two types of tinnitus &. A medical Dr in this field of expertise will need to make that opinion & as for as a secondary to cause or aggravate tinnitus. I would recommend you request a Hearing test from the VA  and you need to let them know about the ringing in your head  not your ears this is the only way a Dr can know you may have tinnitus....the tinnitus is an unknow sounds that come from the middle of the head...and it bout drive a person batty, also if your wanting to get this S.C. AND Possibly rated   you need to  remember if you were around any loud noise while in the military  your mos AND what you did in the military,,,,you don't need combat to qualify for  S.C. Disability  as long as  any event that caused your condition/disability while in the military   if you can prove it  then you can get compensation for it.  but its on the veteran to prove that...you do this with medical reports hearing test  and your lay statement in detail as to how the even happen.  this is called bilateral noise induced hearing loss and it gets worse over the years.   with the exception of natural age progression. jmo ..................Buck
    • Is that your reply to my question here: "Is your inservice nexus to the anxiety/depression in your SMRs and/or established in any other way?" I guess I mean- is that surgical error the cause for the anxiety and depression? I found your past posts and this happened in a Military Hospital. That means it happened in service. I assume you have some Psyche treatment records in your SMRs? Did the SMRs reveal anything that confirms what actually happened ? There are still movements to get the Feres Doctrine abolished. The Feres Doctrine means a service person injured medically (or even killed) by Military malpractice has no way to really sue the Mil or get restitution. Except the way you might get it...via the claims process. I think the Military is better than the VA at covering up this stuff. Then again VA killed my husband and did a very good job of trying to cover it up. They failed however. You have anxiety and depression from a very traumatic inservice event. I just hope the VA sees it that way too,since they deferred that claim. Otherwise you might need an IMO/IME.            





allan

Schedule For Rating Disabilities; Fibromyalgia

3 posts in this topic

REGULATORY AMENDMENT

4-99-2

Regulation affected: 38 CFR 4.71a.

EFFECTIVE DATE OF REGULATION: June 17, 1999

Date Secretary approved regulation: March 24, 1999

Federal Register Citation: 64 FR 32410 (June 17, 1999)

In the Federal Register of May 7, 1996 (61 FR 20438), we published an interim final rule adding a new diagnostic code, 5025, and evaluation criteria for fibromyalgia to § 4.71a of 38 CFR part 4, the rating schedule. This final rule responds to comments received in response to the interim final rule and adopts the interim final rule without change.

The Federal Register document follows.

=======================================================================

------------------------------------ DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AH05

Schedule for Rating Disabilities; Fibromyalgia

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.-----------------------------------------------------------------------

SUMMARY: This document adopts as a final rule without change an interim final rule adding a diagnostic code and evaluation criteria for fibromyalgia to the Department of Veterans Affairs' (VA's) Schedule for Rating Disabilities. The intended effect of this rule is to insure that veterans diagnosed with this condition meet uniform criteria and receive consistent evaluations.

DATES: Effective Date: This final rule is effective June 17, 1999. The interim rule adopted as final by this document was effective May 7, 1996.

FOR FURTHER INFORMATION CONTACT: Vickie Milton, M.D., Consultant, Policy and Regulations Staff (211B), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: On May 7, 1996, VA published in the Federal Register an interim final rule with request for comments (61 FR 20438). The rule added a diagnostic code, 5025, and evaluation criteria for fibromyalgia to the section of the VA Schedule for Rating Disabilities (38 CFR part 4) that addresses the musculoskeletal system (38 CFR 4.71a). A 60-day comment period ended July 8, 1996, and we received three comments, one from two physicians in the Department of Medicine at The Oregon Health Sciences University, and two from VA employees.

The evaluation criteria for fibromyalgia under diagnostic code 5025 have one requisite that applies to all levels: ``[w]ith widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.'' The 40-, 20-, and 10-percent evaluation levels are additionally based on whether these findings are constant, or nearly so, and refractory to therapy; are episodic, but present more than one-third of the time; or require continuous medication for control. One commenter felt that the use of the phrase ``with or without'' as used in diagnostic code 5025 is confusing and might be interpreted as rendering the symptoms that follow the phrase as superfluous and unnecessary in the evaluation of fibromyalgia.

Some individuals with fibromyalgia have only pain and tender points; others have pain and tender points plus stiffness; still others have pain and tender points plus stiffness and sleep disturbance; etc. As a shorter way of stating this, we have used the phrase ``with or without,'' followed by a list of symptoms, to indicate that any or all of these symptoms may be part of fibromyalgia, but none of them is necessarily present in a particular case. When symptoms in addition to pain and tenderness are present, they may be used as part of the assessment of whether fibromyalgia symptoms are episodic or constant. When none of the symptoms on the list is present, the determination of whether the condition is episodic or constant must be based solely on musculoskeletal pain and tender points. The term ``with or without'' is also used in Sec. 4.116 (Schedule of ratings--gynecological conditions and disorders of the breast) of the rating schedule under diagnostic code 7619, ``Ovary, removal of,'' where the criterion for a zero-percent evaluation is ``removal of one with or without partial removal of the other.'' We believe that in both cases the phrase ``with or without,'' rather than adding confusion, better defines the potential scope of the condition under evaluation. We therefore make no change based on this comment.

The same commenter questioned whether the intent is to place a ceiling of 40 percent on the evaluation of fibromyalgia despite the presence of one or more of the symptoms following the phrase ``with or without.'' As the evaluation criteria indicate, there may be multi-system complaints in fibromyalgia. If signs and symptoms due to fibromyalgia are present that are not sufficient to warrant the diagnosis of a separate condition, they are evaluated together with the musculoskeletal pain and tender points under the criteria in diagnostic code 5025 to determine the overall evaluation. The maximum schedular evaluation for fibromyalgia in such cases is 40 percent. If, however, a separate disability is diagnosed, e.g., dysthymic disorder, that is determined to be secondary to fibromyalgia, the secondary condition can be separately evaluated (see 38 CFR 3.310(a)), as long as the same signs and symptoms are not used to evaluate both the primary and the secondary condition (see 38 CFR 4.14 (Avoidance of pyramiding)). In such cases, fibromyalgia and its complications may warrant a combined evaluation greater than 40 percent. Since these rules are for general application, they need not be specifically referred to under diagnostic code 5025.

Another commenter referred to a statement in the supplementary information to the interim final rule that indicated that fibromyalgia is a benign disease that does not result in loss of musculoskeletal function. The commenter said that while it is not a malignant disease which leads to anatomic crippling, the result of persistent chronic pain is often musculoskeletal dysfunction.

The statement regarding the lack of loss of musculoskeletal function is supported by medical texts which state, for example, that objective musculoskeletal function is not impaired in fibromyalgia (``The Manual of Rheumatology and Outpatient Orthopedic Disorders'' 349 (Stephen Padgett, Paul Pellicci, John F. Beary, III, eds., 3rd ed. 1993)); that the syndrome is not accompanied by abnormalities that are visible, palpable, or measurable in any traditional sense; and that the patient must recognize the physical benignity of the problem (``Clinical Rheumatology'' 315 (Gene V. Ball, M.D. and William J. Koopman, M.D., 1986)). These medical texts confirm that fibromyalgia does not result in objective musculoskeletal pathology. The criteria we have established to evaluate disability due to fibromyalgia are therefore based on the symptoms of[[Page 32411]]fibromyalgia rather than on objective loss of musculoskeletal function.

The same commenter said that more could have been said about the wide clinical spectrum of fibromyalgia and the associated stress response which may lead to clinical problems of psychopathology, inappropriate behavior, deconditioning, hormonal imbalance, and sleep disorder.

The evaluation criteria do include a broad spectrum of possible symptoms, and sleep disturbance is one of them. As discussed above, any disability, including a mental disorder, that is medically determined to be secondary to fibromyalgia, can be separately evaluated. The rating schedule is, however, a guide to the evaluation of disability for compensation, not treatment (see 38 CFR 4.1), and it is unnecessary for that purpose to include a broad discussion of the clinical aspects of fibromyalgia. We therefore make no change based on this comment.

The same commenter said that it is important to stress that fibromyalgia may co-exist with other rheumatic disorders and have an additive effect on disability. If two conditions affecting similar functions or anatomic areas are present, and one is service-connected and one is not (a situation that is not unique to rheumatic disorders), the effects of each are separately evaluated, if feasible.

When it is not possible to separate the effects of the conditions, VA regulations at 38 CFR 3.102, which require that reasonable doubt on any issue be resolved in the claimant's favor, dictate that the effects be attributed to the service-connected condition. Since there is an established method of evaluating co-existing conditions, there is no need to stress the point that other diseases may co-exist with fibromyalgia, resulting in additive effects, and we make no change based on this comment.

The commenter also stated that the correct diagnosis of fibromyalgia and the exclusion of other rheumatic conditions are of paramount importance in ensuring a successful treatment program.

The diagnosis of fibromyalgia and exclusion of other rheumatic disorders are functions of the examiner and outside the scope of the rating schedule, which, as noted earlier, is a guide for the evaluation of disability for purposes of compensation, not treatment. We therefore make no change based on this comment.

One commenter stated that claimants with fibromyalgia will present with limitation of motion of various joints of the body, and the rating agency will have to take into consideration pain on movement and functional loss due to pain (see 38 CFR 4.40 and 4.45). The commenter felt that the proposed scheme invites separate ratings for limitation of motion of each joint.

Fibromyalgia is a ``nonarticular'' rheumatic disease (``The Merck Manual'' (1369, 16th ed. 1992)), and objective impairment of musculoskeletal function, including limitation of motion of the joints, is not present, in contrast to the usual findings in ``articular'' rheumatic diseases. Joint examinations in fibromyalgia are necessary only to exclude other rheumatic diseases because physical signs other than tender points at specific locations are lacking. The pain of fibromyalgia is not joint pain, but a deep aching, or sometimes burning pain, primarily in muscles, but sometimes in fascia, ligaments, areas of tendon insertions, and other areas of connective tissue (Ball and Koopman, 315). The evaluation criteria require that the pain be widespread, and that the symptoms be assessed based on whether they are constant or episodic, or require continuous medication, but they are not based on evaluations of individual joints or other specific parts of the musculoskeletal system. We believe the evaluation criteria make clear the basis of evaluation, and we therefore make no change based on this comment.

SOURCE: http://www.warms.vba.va.gov/admin21/guide/pg21_2/part4.doc

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Layman's terms???

We've long thought my wife has fibro. It can be crippling. But knowing little about it, how does one sc fibro? Or does it carry only as a secondary?

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this appears to be the last time that this part of the rating criteria was changed, which was in 1999. Probably just a post for reference and to study.

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