Fibromyalgia, Secondary to Existing SC Disability

[Crystal_707]

I recently filed a claim for my newly diagnosed Fibromyalgia as secondary to my PTSD and was outright denied. My PTSD started out as panic/anxiety disorder at 30%. My mental health counselors diagnosed with me with PTSD and stated that I should go file. I did and my panic/anxiety disorder increased to 50% as PTSD with panic/anxiety disorder. I went in for an increase to the PTSD as my medication strength was increasing and I was finding myself isolated and such and it was increased to 70%, ever since the PTSD was getting worse, the symptoms of Fibromyalgia began to appear alongside the PTSD. How do I go about claiming or appealing their decision as I was told by DAV to suck it up, you're at 90% and to not f**k with the 5 year VBA rule, otherwise they can reduce all my percentages down to 0% and have me just at service-connected 0% and just pay all my medical, which scares me because I have 3 boys who are highly active and as a single parent with this new, painful diagnosis, it stresses me out more that I can't keep up or participate and be active with them. The DAV rep did say to have my Dr state that the fibro is "at least as likely not" to win my case, but if I'm claiming it as secondary to my PTSD what do I need to do? I'm not sure what I need as both symptoms of the PTSD and Fibro are very much related. So I'm not sure what I need to do at this point as it's becoming increasingly frustrating, because had I not had PTSD, the fibro would not exist. Does anyone know what to do or has been in this similar situation and can help guide me?

 

Side note* I was physically abused by my husband, both of us were active duty at the time, where I did complain about pain in my lower back, neck and elbows and was seen for medical for all three, all of which each of those areas are intensified from the Fibro. I have put in claims for those 3 areas too and have been denied because there's a break in treatment, but if I can handle the pain for a while, and then later seek treatment for them and can only relate them to that time frame/injury, can't those be claimed as stand alone service connected? I know that symptoms and pain can lay dormant for years even decades and can be brought back to surface due to age or aggravated by another event. So how can I get these conditions service connected as well?

Edited August 10, 2017 by Crystal_707
added more to the original that was forgotten about

[broncovet]

Crystal: 

You need to order your cfile, and read it.  Does it have a medical exam where your doctor states, "The Vets fibro myalgia is at least as likely as not due to the PTSD sufffered in service".  If you have such a statment, you should be able to appeal and win.  If not, you can appeal anyway, but you will need to get an IMO/IME anyway.  

As far as a reduction, there is no regulation which states, "When the Veteran asks for an increase, reduce him instead."   Its just selling you fear to keep you at a lower percentage than what you deserve.  

If you have been rated for 5 years or more, the VA can

not reduce you unless you have "actual improvement" under ordinary condtions of life.  Read about your protections here, if you have been rated 5 years or longer:  

 

Quote

 

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

Ask your VSO to show you the regulation where they reduce you if you ask for an increase.  I just showed you why they can not do that.  

[Crystal_707]

Thank you broncovet for the education. I will have to see what I can get from my doctor without me having to push them in the direction of stating that its "at least as likely not". Also what should i do about claiming my neck, back and arms from the abuse? Ive been denied, nut do ibhave to fet the same statement to tie it to my service being that it is documented in my service medical record?

[Buck52]

707

broncovet gives great advise,,,,'' as least likely as not'' without those words written out from a Dr, Preferably a specialist in this field of medicine,your claim will not go anywhere other than the denial bend.

Just simply ask the Dr if he can write those words into his opinion.

 it's just what the VA Likes to hear,(We simply call it VA Language)  it does not put the Dr in any jeopardy, or be accountable,  actually it clears the Dr from saying  your condition is caused by (that's only speculation) as for as the VA is concerned.

Make sure the Dr reads your medical records that pertain to the condition your claiming & has examined you thoroughly & give his credentials and  years of expertise.

[broncovet]

Crystal.  

Apparently, you looked and there is no "at least as likely as not" in your file.  It should only take ONE doctor, because most dont offer a nexus, and the Veteran gets the benefit of the doubt.  

In other words, if Doctor A says, "I can not find a nexus"

And Doct B says, "Its as least as likelay as not due to trauma while in military service", then you should win, as the claim is in equipose, and the tie goes to the VEt.  The VA can order a C and P exam "to resolve this apparent disagreement among doctors", but even if he also said that he can not find a nexus, there is still a good chance the BVA will side with the Vet, because you have one POSITIVE example and two docs who could not find it.  If you lost your wallet and 3 people were looking for it, 2 did not find it, but the third did and returned it to you, guess what..you get your wallet back.  

[broncovet]

Or, maybe you just guessed there was no nexus, and you did not get your cfile and read it.  THIS is a bad idea that will probably "bite" you.  I did not want to order my cfile, and wanted to read it even less.  However, when I was still spinning my wheels after 7 years, I decided to do it right the first time, as I didnt have another 7 years to do it over.  

So, you decide.  Would you like your benefits it 2017 or maybe 2018 or 2019, OR would you like to wait until seven more years after that?  

You need to KNOW whether VA read your file, or if your evidence never made it to your file, because you handle these differently.  

If you HAVE the evidence, in your file, you just appeal until you find a judge that can read.    

IF you dont have the evidence, (in your file)  resubmit the evidence then appeal.  

[sixthscents]

Hello Crystal_707....

      My personal experience with the DAV and AmVets were incredibly negative but that is not the norm so I am going to cut them some slack for being buried with cases etc. and just say they have told you something which is both factually incorrect and personally I have never seen. The idea that the VA would reduce you to 0% since you are NOT only rated for PTSD but probably the anxiety disorder as well is slim to none. Just won't happen. Certainly not in any short time frame from your increase to 90%. They couldn't justify giving it to you and taking it away only a short time later. You would have to improve incredibly.

     Now, the issue is tying the fybromyalgia as secondary to the PTSD, the anxiety or mood disorder or whatever else you have in your C-file. As many have stated you need to order it soonish. Then when you have an idea of what was said you can move forward. Unless there is something in your service medical files, or your discharge physical etc. though you best chance of success will be to tie it to an already existing and rated condition. As to PTSD, I am unsure if it can be secondary to PTSD etc. but then I am not a doctor. What I would suggest is filing a NOD for the denial but how to word it etc. is something only you can decide. I would look up instances and studies linking it and PTSD and provide those with your NOD. PTSD has been linked to many secondary effects so I would hammer home that you are claiming it secondary to the already established PTSD. Further I would get the records showing the Fibro diagnosis (was it the VA that diagnosed it?) and provide that.

     Why specifically did the VA deny the rating? I am guessing that they stated that no clear link had been established, which in your NOD I would request a C&P exam to establish or disprove that. I would probably base your NOD off the fact that the VA denied the claim without a C&P exam to either establish or disprove your claim. If you could get a civilian physician to state that it was "at least as likely as not" that the Fibro was secondary and caused by the PTSD it will help your case quite a bit and is something you might consider getting and submitting with your NOD.

     I do... heck we ALL do really understand your frustration here. It is a process but if you quit... they win. Since you are here, I am fairly certain you don't want that and are willing to work to make sure it won't happen (look what you have done already!). You are very close.... Also.... have you filed for individual unemployability? I didn't see that and since you are rated at 90%... well it's something I would consider.

Six