Louie

Got the letter; I won!

Take a look at http://www.myalgia.com/vah%20disability.htm You'll find a final rule on the VA's evaluation criteria for fibromyalgia. Your answer (ammunition) is in that document.

The answer appears to be "yes." Got the SO letter. Now waiting for the VARO letter. My fingers are crossed. Louie Prior topic link

Time, There are Os here. O/E...the struggle is the same for all. I did receive comments from the finance office at the RO about the size of my retirement check and concurrent receipt, but that matters not. Each is entitled to the benefits allowed by law, O/E doesn't matter. I lurk alot and learn much thanks to the active members of this board. I currently have an appeal in awaiting to be sent to the BVA. I would not have been able to effectively wade through the VA maze but for the help found at HADIT. Louie

Can you say Deluca? DECISION ASSESSMENT DOCUMENT DOCKET NO.: 94-242 ACTIVITY: RATING NAME: DeLuca v. Brown ISSUE(S): 38 C.F.R. §§ 4.40 and 4.45 ACTION BY COURT: Remand DECISION DATE: 9/22/95 BEFORE JUDGES: Nebeker, Kramer, Steinberg FACTS: The veteran has established service connection for arthralgias of the left shoulder. A 20% evaluation was awarded in June 1990, following a VA examination which showed limitation of motion. The impression of the examiner was "frozen shoulder syndrome....with some degree of psychogenic overlay." It was noted that restricted mobility was due, in part, to voluntary guarding. On appeal to the BVA, the decision was affirmed. In a memorandum decision in May 1993, the Court remanded the appeal to the BVA to consider the application of 38 C.F.R. §§ 4.40 and 4.45. The BVA undertook no additional development but determined that sections 4.40 and 4.45 did not provide for an increased rating because the diagnostic code assigned under 38 C.F.R. § 4.71, 5201, "contemplates the functional loss resulting from pain on undertaking motion," and because the disability contemplated by section 4.45 is normally associated with muscle injury. Oral argument was presented on 7/31/95. ANALYSIS: The Court held that DC 5201 does not subsume section 4.40 and that section 4.14 (pyramiding) does not prohibit consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups. The Court also held that the BVA's reading of section 4.45 cannot be sustained. The plain language of the regulation does not limit the evaluation criteria contained therein to muscle injuries. As such, a remand was required to obtain a new examination. The medical examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time. This was to be portrayed in terms of the degree of additional range of motion lost due to pain on use or during flare-ups. A similar opinion was to be requested concerning the disability factors contained in section 4.45. RECOMMENDED VBA ACTION(S): None. The requirement to consider the provisions of 38 C.F.R. §§ 4.40 and 4.45 when evaluating disabilities involving the joints has been stated in other Court decisions, notably Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Quarles v. Derwinski, 3 Vet. App. 129 (1992); and Ferraro v. Derwinski, 1 Vet. App. 326 (1991). ACTION BY DIRECTOR, C&P SERVICE: Approved? _X_ ___ ______________/s/___________________ 10/18/95 Yes No J. Gary Hickman Date

Betrayed, I think the 300 dollar kicker was replaced in 2004 with concurrent receipt passage. I know that those with 100% schedular are entitled to full concurrent receipt: you receive both VA compensation and your retirement check for 20 yrs or more of service. Those of us who are less than 100% (but at least 50%) are having our retirement pay restored over time. For example, a person currently rated at 70% has 737.07 of retirement pay restored (1232.00 - 494.93). Said another way...It used to be that one would have to forfeit retirement pay to receive the tax free VA compensation. That is being phased out. You now get both in full if you are 100% schedular and are being phased in to receive both if you are rated 50% or more. The details of the figures above are indicative of someone who is experiencing the benefits of concurrent receipt. Louie

Betrayed, Check out http://www.dod.mil/dfas/retiredpay/concurr...abilitypay.html as it discusses concurrent payment of retirement benefits and VA compensation. Also go to the link on the left that will show you the rates. Yes, you can draw both retirement pay and VA compensation. In fact, those who are 100% VA rated receive full payment of both. This began in 2004 with a phase in. Later (Date I do not know) those at 100% schedular where granted full concurrent receipt--you receive your full military retirement and VA compensation. Good luck!

I filled a NOD last summer and selected normal BVA option. My file had been at the rating board at the VARO. Today I called the 800 number and was told that my file had been returned to the storage area. A decision had been made, but without the file they could not tell what the decision was. What's next? Will I receive a SOC and Form 9, or have I prevailed locally?

Bigjim, If you are retired with 20 years active duty service, you are eligible for concurrent receipt. At 100% you don't even have to wait for any phase in period. No need to apply; it is automatic. Bottom line = you get both checks--in full.

I'm not sure if these are current, but here is a link with numbers. Let me know if the numbers are good. LouieArmy Pamphlet 360-526 (1992)

Thank you! I found 96-46 591 citation 0012473 and citation 0305273. It is clear. A veteran was seeking an increased rating following knee replacement. The RO disallowed the increase and upon appeal to the BVA the case was remanded because instability of the knee is not an overlapping symptom dealing with limitation of motion. Subsequently, the RO gave the veteran 10% for instability (in addition to the 30% for knee replacement). The veteran appealed again to the BVA asking for an increase to the ratings. The BVA did not grant an increase but left the 30% rating for the knee replacement and the 10% for knee instability in place. (NOTE: The replacement and instability where for the same knee.) Thank you for the tip. Louie

Berta and others, What do you think about the question two posts below? Thanks in advance, Louie

Sorry folks, The link below doesn't work. But if you go to the UCAV site and search for 5055, document 4-0554 comes up at the top. Sorry for the inconvenience. Louie

I found in UCAV 04-554 a order that "Board decision is REVERSED to the extent that it concluded separate ratings under DC 5055 and 5257 would violate 38 C.F.R. 4.14, and the matter is REMANDED for further proceedings consistent with this order." The document says that "this action not be cited as precedent." Nevertheless, it seems that the court would have based their decision on solid law. How can I, and what method do I use this information when forming a NOD? Thanks in advance.UCAV 04-554

Concerning insomnia and fibromyalgia...Does this document clarify the issue? Department of Veterans Affairs 38 CFR Part 4 RIN 2900

The decision states, "Service connection for osteoarthritis, right and left knee, status post total knee replacement, is granted with an evaluation of 100 percent for each knee..." I think I got the S rate for housebound..it was 2813 per month.

The C&P eval report says that I currently have severe sleep disorder as a side effect of my fibromyalgia. Do you think I'll still need another witness?

Thank you for your help. Concerning Deluca, during the C&P I discussed fatigability with the doctor. Unfortunately, that discussion was not reflected in the C&P report. ( I have requested a copy of my C-file to see everything.) I discussed that I had frequent buckling in the knees due to the severe instability causing fatigue in the knee after a short time on my feet. The "severe instability" was included in the C&P report. I have no extension or significant limitations of motion. The left knee does extend past 0 degrees and is a bit painful when it buckles in. I wear a brace to help. Concerning the proper comp and convalesence period, I was 100% with housebound for 13 months. I do have a question on this. Do I get an SMC code in addition to being housebound? This was bilateral knee replacement. As such, each knee was rated 100% for that time period.

It is my understanding that pyramiding means rating the same manifestation of a condition under two separate DC. I am having difficulty finding manifestation of lateral instability (5257) within the the knee replacement DC (5055). Does anyone here see what I see, or am I missing something?

Thank you. The C&P report says sleep disorder due to fibromyalgia. (The fibro is service connected.) Should I NOD?

How is insomnia rated? What criteria are used and what are the DC?

Does VA General Councel (VAOPGPREC 23-97) support separate possible ratings for 5257 and 5055?

I had a knee replacement. During my C&P the doctor wrote that I had severe lateral instability in the knee. Does this qualify as a 60% rating, or is lateral instability (5257) a separate rating? I had a knee replacement. During my C&P the doctor wrote that I had severe lateral instability in the knee. Does this qualify as a 60% rating, or is lateral instability (5257) a separate rating?

Can 5055 (knee replacement) and 5257 (lateral instability in the knee) be assigned as separate disabilities without pyramiding? It is my understanding that 5055 and 5257 do not have overlapping manifistations. 5055 rating is affected by severe pain or weakness (30% vs. 60%). 5256, 5261, and 5262 seem to have overlapping disibility traits with 5055, but 5257 does not seem to overlap with 5055. Your thoughts/references?