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doc25

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  1. It's at your discretion. Some people would recommend not to pursue the appeal, Some would recommend to continue. If you were granted 100% recently, I don't think you would be penalized for it if you continue with the pending appeal. Usually, administrative review is done within 5 years of a granted claim. I'll double check though. My suggestion would be to continue with the pending appeal, because the ratings are capped at 100% anyway, but if the appealed claim is granted, it could be added on for SMC; depending if it meets SMC criteria.
  2. VA DISABILITY RATINGS FOR COPD WEDNESDAY MAY 23, 2018 Chronic Obstructive Pulmonary Disease (COPD) is an inflammatory lung disease that causes obstructive airflow to and from the lungs. Symptoms of COPD include coughing, difficulty breathing, wheezing, tightness of the chest, and frequent respiratory infections. COPD is often referred to as chronic bronchitis or emphysema. However, a person can have symptoms of both, or, for example, have symptoms of COPD and not bronchitis. WHAT CAUSES COPD? COPD can be caused by exposure to harmful gases or particulate matter, such as sand and dust. Veterans who served in Iraq and Afghanistan after September 11, 2001 may have been exposed to burn pits, open-air pits used on U.S. military bases to burn waste. Servicemembers exposed to the hazardous chemicals released from the burn pits may experience severe respiratory conditions after service, including COPD. SERVICE CONNECTION FOR COPD Veterans seeking service connection for COPD will likely be service connected on a direct basis. Direct service connection requires veterans to meet three criteria. Veterans must have: A current diagnosis An in-service event, injury, or symptom A medical “nexus” linking the in-service occurrence to their current diagnosis HOW DOES VA RATE COPD? VA rates COPD based on the results of respiratory functioning tests, such as Forced Expiratory Volume in 1 Second (FEV-1), the ratio of FEV-1 to Forced Vital Capacity (FCV), the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)), and exercise testing. FEV-1 is the maximum amount of air that a person can breath out in 1 second. FEV-1 is measured against the FEV-1 for a normal person of your size and age. FCV is the total amount of air that a person can exhale after taking a full breath in. Similar to FEV-1, it is expressed in a percentage of the average person similar to you. DLCO (SB) measures the ability of a person’s lungs to transfer gas from air that is inhaled to their red blood cells. The test measure this by testing how much carbon monoxide is left when a person exhales compared with how much they inhaled. This measurement is compared to that of a normal, average person. Exercise testing determines show much oxygen a person’s blood uses when they are functioning at maximum capacity, meaning the maximum amount of physical activity that the person can repeat and sustain. This measure is expressed in the amount of oxygen used by your body weight per minute. VA RATING SCHEDULE FOR COPD VA rates COPD under 38 C.F.R. 4.97, diagnostic code 6604. Ratings range from 10 to 100 percent disabling, and are meant to compensate veterans for the lack of earning capacity caused by their condition. The 10 percent rating requires that a veteran have one of the following: FEV-1 of 71 to 80% predicted FEV01/FVC of 71 to 80% DLCO (SB) of 66 to 80% predicted The 30 percent rating for COPD requires: FEV-1 of 56 to 70% predicted, or; FEV-1/FVC of 56 to 70%, or; DLCO (SB) of 56 to 65% predicted The 60 percent rating requires: A FEV-1 of 40 to 55% predicted, or; FEV-1/FVC of 40 to 55%, or; DLCO (SB) of 4 to 55% predicted, or; Maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) Finally, the 100 percent rating for COPD requires that a veteran have one of the following: FEV-1 less than 40% predicted FEV-1/FVC less than 40% DLCO (SB) less than 40% predicted Maximum exercise capacity less than 15 ml/kg/min oxygen consumption Right heart failure Right ventricular hypertrophy Pulmonary hypertension shown by Echo or cardiac catheterization Episodes of acute respiratory failure Require outpatient oxygen therapy NOTE: Veterans can only be rated for one respiratory condition. For instance, if a veteran has COPD and asthma that they believe were caused by service, they can only receive VA disability benefits for one of them. Have another Dr. fill out a DBQ for that different condition and provide a nexus of opinion that states....."at least as likely as not" (equal to or greater than 50% probability) the veteran's condition is service-connected. Then have the Dr. give a clear and concise rationale why your condition is service-connected. Once you get a favorable nexus you can re-open the denied claim if it's past the one year appeal time frame.
  3. Ha ha. Like the C&P examiner that screwed me over on a bogus "congenital" flat feet rationale at the Pensacola VA Clinic. Winston-Salem RO denied my claim for bilateral flat feet. Even though it clearly shows in my entrance exam I had normal arches in 1998 and was diagnosed in-service 8 years later with flat feet.
  4. – Tendonitis is close enough that it is rated as Tenosynovitis, code 5024. 5024 Tenosynovitis. With 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: Note: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.
  5. Ankle Joint Code 5270: If the ankle joint is frozen in place and cannot be moved, then it is rated depending on where it is frozen. If it is frozen in plantar flexion more than 40°, in dorsiflexion more than 10°, or in abduction, adduction, inversion or eversion, then it is rated 40%. If it is frozen in plantar flexion between 30° and 40° or in dorsiflexion between 0° and 10°, then it is rated 30%. A 20% rating is given if the ankle is frozen in plantar flexion less than 30°. Code 5271: If the ankle is not frozen, but limited in motion, then it is rated under this code. Normal range of motion for the ankle is 0° to 20° dorsiflexion and 0° to 45° plantar flexion. A 20% rating is given for a markedly limited range of motion and a 10% is given for a moderately limited range of motion.
  6. The nexus of opinion for a favorable decision is met. Now, it's up to the ratings scheduler to grant the appropriate percentage for your symptoms. Congrats. I think the most you can get is 20 %, but I'll double check. I'll post what I can find. MEDICAL OPINION SUMMARY ----------------------- RESTATEMENT OF REQUESTED OPINION: a. Opinion from general remarks: Does the Veteran has a diagnosis of left ankle condition that is at least as likely as not incurred in or caused by service? TYPEOFMEDICALOPINIONPROVIDED: [ MEDICALOPINIONFORDIRECTSERVICE CONNECTION ] a. The condition claimed was at least as likely as not (50%or greater probability) incurred in or caused by the claimed in-service injury, event or illness. c. Rationale: STR's and medical records reviewed. 20 Jan 1993 notes a bilateral ankle complaint. 21Aug1992 notes complaint of both ankles and diagnosis of bilateral achilles tenodontis. Enlistment is silent for ankle BRAGGS, DERICK CRYER CONFIDENTIAL Page 93 of 171 conditions. 6Aug1996 notes ankle pain but does not delineate whether one or both. 10Aug1992 notes a complat of left ankle pain for one week. Veteran has had ongoing ankle condition since separation and his MRI supports a chronic condition. Therefore, it is greater than 50%likely it resulted from service. ************************************************************************* /es/ HOLLYM GALLEGOS PA-C Signed: 07/ 11/ 2018 10:50
  7. doc25

    Confused about my claim.

    I'll take a stab at it. It happened to me on my last claim. E bennies went to preparation for decision then in 24 hrs went to gathering of evidence. It delayed the process about three weeks when it showed my claim "not service connected" in the disabilities list. (bummer) The more accurate way to look at ebenefits is when it shows "service connected" or "not service connected" in the disabilities menu. It'll drive you crazy if you keep looking at the stages of a claim. The most accurate way to get your results of a claim is when you receive your granted/denial letter.
  8. Since you received a remand, that is a list of instructions the board is telling the VA and the veteran to do. It's not a denial, so it's always a good thing. It's still going to delay the process, but like I mentioned before, the longer it takes the more $$$ will be in your pocket. When you see lump sums of $15k or more, it'll be worth the wait. Best wishes on your claim.
  9. Depending on the severity of your migraines they can be rated from 0% to 50%. Here is an appeals case that was favorable for a veteran with migraines. Read through it and see if you meet the requirements for the appropriate rating provided in the case. The longer the VA takes, the more money they are ;required by law; to compensate you in retro pay. So be patient.(I know it's easier said than done, I've been there too.) Citation Nr: 1631068 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 10-44 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to disability ratings for migraine headaches higher than 30 percent prior to September 3, 2015, and 50 percent from September 3, 2015, forward. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from May 1993 to September 1995. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Oakland, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a March 2007 rating decision, the RO continued a 30 percent disability rating for migraine headaches. In May 2015, the Board remanded the case to the RO for the development of additional evidence. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record in the increased rating claim. In a September 2015 VA medical examination, the examiner found that the effects of medications for the Veteran's migraine headaches and the frequency of migraines made her unable to work. That finding raises a TDIU claim. In a May 2016 informal hearing presentation, the Veteran's representative also raised the issue of entitlement to special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Board therefore has added these claims to the issues on appeal. The issues of a TDIU and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Prior to September 3, 2015, the Veteran had prostrating migraine attacks that were so frequent and persistent as to produce severe economic inadaptability. CONCLUSION OF LAW Prior to September 3, 2015, the Veteran's migraine headaches met the criteria for a 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2., 2.7, 4.10, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In July 2006, the Veteran submitted a claim for a disability rating higher than the existing 30 percent rating for her service-connected migraine headaches. In a March 2007 rating decision, the RO continued the 30 percent rating. The Veteran appealed that decision. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015. The Veteran continued her appeal. She contends that impairment resulting from her migraines warrants ratings higher than 30 percent before September 3, 2015, and 50 percent from September 3, 2015. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The rating schedule provides criteria for evaluating migraine as follows: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability ........................................................... 50 percent With characteristic prostrating attacks occurring on an average once a month over last several months .... 30 percent With characteristic prostrating attacks averaging one in 2 months over last several months ................... 10 percent With less frequent attacks .............................. 0 percent 38 C.F.R. § 4.124a, Diagnostic Code 8100. Turning to the evidence, in private treatment in July and September 2006, ongoing chronic migraine was noted. The Veteran's headaches were described as infrequent, and sometimes lasting two days. On VA examination in October 2006, the Veteran reported that during migraine attacks she had to stay in bed and was unable to do anything. She stated that the attacks lasted three days, and occurred on average eight times per month. In an October 2006 statement, the Veteran wrote that in 2005 her headaches lasted one to three days and occurred ten to fifteen times per month. She stated that during headaches she stayed inside her house. She asserted that her headaches made her unable to function, and made employment out of the question. She indicated that more recently she had experienced five to eight headaches per month. She reported that she had lost her driver's license and did not work. In private treatment in January 2007, the Veteran reported having migraines about eight days a month, with about five of those severe and disabling. In private treatment in May 2007, the Veteran reported having about six migraines per month. In June 2007, the Veteran's husband wrote that the Veteran had five to eight migraines a month, many requiring eighteen to twenty hours in bed in dark and quiet conditions. Two of the Veteran's daughters wrote that the Veteran had headaches many times per week, and had to spend a great deal of time lying down. In private treatment in December 2007 and April 2008, the Veteran reported having headaches about every ten days. In July 2008, she reported intermittent migraine headaches. In September 2008, she reported a severe headache that lasted three to four days. In ongoing treatment of the Veteran for migraines in 2010, the treating physician adjusted medications. In June 2010, the Veteran reported having very severe headaches five to eight times a month. In a November 2010 statement, the Veteran wrote that the severity, frequency, and duration of her headaches caused an economic burden. In private treatment in January 2011, the Veteran reported headaches that lasted one to three days and occurred at least fifteen times per month. In February 2011, her headaches were described as chronic and daily. In July 2011, she was seen during a headache that had been present for three days. In August 2012, she reported headaches that required lying down up to three times per week. On VA examination in July 2013, the Veteran reported having headaches that lasted two to three days and occurred about fifteen times a month. In private treatment in September 2013, the Veteran reported having had fourteen headaches in the preceding month. In April 2014, a physician indicated that, because of the Veteran's migraines, work as a postal carrier would put her at high risk of vision loss. In private treatment in July 2014, the Veteran reported no change in her headaches. In a July 2014 statement, the Veteran wrote that she had headaches that lasted one to three days and occurred at least fifteen times per month. She stated that during headaches she had to stay still in a dark and quiet place. She stated that she could not look at a computer screen for more than fifteen minutes at a time. She reported that she was released from her last job because of her limitations due to headaches. She asserted that those limitations would prevent her from securing employment. On VA examination in September 2015, the Veteran reported having migraine headaches nearly every other day. She indicated that the head pain typically lasted less than one day. The examiner found that the Veteran had very prostrating and prolonged migraine attacks productive of severe economic inadaptability. The examiner stated that the Veteran was unable to work due to the extent of medications as well as the frequency of migraine attacks. In a June 2016 statement, the Veteran wrote that she had no less than 12 to 15 headaches a month that were intense and kept her at home and in her room. In private treatment in 2015 and 2016, the Veteran reported ongoing migraines with no significant changes in intensity and severity. Pertinent diagnoses included chronic migraine without aura, intractable, with status migrainosus. The Veteran's statements and medical records indicate that she had migraine attacks that were prostrating, prolonged, much more frequent than once a month, and so frequent and persistent as to produce severe economic inadaptability. Accordingly, the manifestations and effects of her migraine headaches met the criteria for a 50 percent rating. The Board therefore grants a 50 percent rating prior to September 3, 2015. A 50 percent rating is the maximum rating available under DC 8100. Accordingly, the claim has been granted in full. ORDER Entitlement to a 50 percent disability rating for migraine headaches for the appellate period prior to September 3, 2015, is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND Unfortunately, a remand is also required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. Appropriate development should be completed, as set forth below. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter concerning the issues of entitlement to a total disability rating based on individual unemployability and entitlement to special monthly compensation. She should be provided with and asked to complete and return a VA Form 21-8940. She should also be asked to clarify her contentions concerning the claim for special monthly compensation. 2. Obtain the Veteran's updated VA treatment records. 3. Next, schedule the Veteran for an appropriate VA examinations to evaluate the issues of entitlement to a TDIU and SMC. 4. Finally, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Board intimates no opinion as to the ultimate outcome of the remanded matter. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
  10. In the Nexus from your Dr. is one of three phases present? “is due to” (100% sure) “more likely than not” (greater than 50%) “at least as likely as not” (equal to or greater than 50%) And is there a detailed rationale linking IBS to Fibromyalgia? Here is a Veteran's case that was granted on appeal. It appears you may have a decent chance to getting a favorable decision. Read through it and see towards the end. Best wishes. Citation Nr: 1441730 Decision Date: 09/18/14 Archive Date: 09/30/14 DOCKET NO. 11-17 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome, as secondary to service-connected fibromyalgia. 2. Entitlement to service connection for headaches, as secondary to service-connected fibromyalgia. 3. Entitlement to service connection for fatigue, as secondary to service-connected fibromyalgia. 4. Entitlement to service connection for insomnia, claimed as sleep disturbance, as secondary to service-connected fibromyalgia. 5. Entitlement to service connection for gastritis, as secondary to service-connected fibromyalgia. 6. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to service-connected fibromyalgia. 7. Entitlement to service connection for anxiety with depression, as secondary to service-connected fibromyalgia. 8. Entitlement to service connection for arthralgia of all joints (claimed as stiffness and tightness of the back and chest), as secondary to service-connected fibromyalgia. 9. Entitlement to service connection for elevated liver enzymes due to fatty liver, as secondary to service-connected fibromyalgia. 10. Entitlement to service connection for dysthymic disorder, as secondary to service-connected fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1985 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the issues of entitlement to service connection for diffusion of the ankles, bone spurs of the neck, and bilateral carpal tunnel syndrome were certified for appeal to the Board in February 2012. However, the Veteran's substantive appeal, via VA Form 9, dated in June 2011, identified the issues listed on the title page of this decision as the only issues on appeal, and explicitly excluded the issues of entitlement to service connection for diffusion of the ankles, bone spurs of the neck, and bilateral carpal tunnel syndrome. The Board acknowledges the decision of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37 (2009) which held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Unlike the claimant in Percy, in this Veteran's case, VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy, 23 Vet. App. at 46. Other than the VA Form 8, Certification of Appeal, dated in February 2012, there is no reference to continued claims of entitlement to service connection for diffusion of the ankles, bone spurs of the neck, and bilateral carpal tunnel syndrome subsequent to the Statement of the Case (SOC). The Board notes the RO did not issue a Supplemental Statement of the Case or otherwise readjudicate the claims since the April 2011 SOC. Accordingly, the Board concludes that this case is distinguished from Percy, and that the issues of entitlement to service connection for diffusion of the ankles, bone spurs of the neck, and bilateral carpal tunnel syndrome are not in appellate status, and are not before the Board. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of service connection for gastritis, GERD, elevated liver enzymes due to fatty liver, and dysthymic disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints are proximately due to the service-connected fibromyalgia. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints have been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claims of service connection for irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints have been considered with respect to VA's duties to notify and assist. Given the favorable outcomes adjudicated herein, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In this case, irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Irritable Bowel Syndrome, Headaches, Fatigue, Insomnia, Anxiety with Depression, and Arthralgias of All Joints The Veteran contends that irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints are secondary to the service-connected fibromyalgia. As stated above, to prevail on the issue of secondary service causation, the record must show competent evidence of (1) a current disability, (2) a service-connected disability, and (3) a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. After a review of all the evidence, the Board first finds that the evidence shows current disabilities of irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints. In a January 2001 VA examination, the Veteran was diagnosed with arthralgias of all joints, migraines, and irritable bowel syndrome. In November 2009 and June 2010, the Veteran's private treating doctor indicated that the Veteran was being treated for generalized anxiety disorder with depression, polyarthralgias, insomnia, irritable bowel syndrome, headaches, and fatigue. The Board next finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints are proximately due to the service-connected fibromyalgia. In this regard, in a September 1998 rating decision, the RO granted service connection for fibromyalgia. An October 2011 RO rating decision increased the disability rating to 40 percent for fibromyalgia. Evidence favorable to the claims includes a January 2001 VA examination report. After a comprehensive physical examination, the VA examiner diagnosed migraines secondary to fibromyalgia and irritable bowel syndrome secondary to fibromyalgia. In support of the claims, the Veteran submitted a June 2010 letter from her private treating doctor, B.Y. Dr. B.Y. indicated that the Veteran was being treated for fibromyalgia, and opined that polyarthralgias, depression, and anxiety were all secondary to the fibromyalgia diagnosis. Dr. B.Y. further indicated that the Veteran's condition (fibromyalgia) had worsened in the past few months and she was also suffering from insomnia, irritable bowel syndrome, headaches, and fatigue. The Board finds that the VA examiner's and Dr. B.Y.'s medical opinions regarding the etiology of the Veteran's irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints to be probative. The opinions are competent and probative medical evidence because they are factually accurate, as it appears they had knowledge of the relevant evidence in this case, relied on accurate facts, and gave fully articulated opinions. There is no other competent medical opinion of record against the claims that directly addresses the etiology of the Veteran's irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for irritable bowel syndrome, headaches, fatigue, insomnia, anxiety with depression, and arthralgias of all joints, as secondary to the service-connected fibromyalgia, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for irritable bowel syndrome, as secondary to service-connected fibromyalgia, is granted. Service connection for headaches, as secondary to service-connected fibromyalgia, is granted. Service connection for fatigue, as secondary to service-connected fibromyalgia, is granted. Service connection for insomnia, as secondary to service-connected fibromyalgia, is granted. Service connection for anxiety with depression, as secondary to service-connected fibromyalgia, is granted. Service connection for arthralgia of all joints, as secondary to service-connected fibromyalgia, is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the claims for service connection for gastritis, GERD, elevated liver enzymes due to fatty liver, and dysthymic disorder. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). Service Connection for Gastritis, GERD, and Elevated Liver Enzymes Due to Fatty Liver The Board finds that a VA examination is necessary to assist in determining the nature and etiology of any current gastritis, GERD, and elevated liver enzymes due to fatty liver. VA must afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), provided further guidance, outlining that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. With respect to the need for an indication that a veteran's current disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, the Court stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology to include symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. In this case, the Veteran has not been afforded a VA examination for the claimed gastritis, GERD, and elevated liver enzymes due to fatty liver. The Veteran has consistently asserted that these claimed conditions are secondary to the service-connected fibromyalgia. While the record reflects abnormal laboratory findings due to elevated liver enzymes, it is unclear if the Veteran has been diagnosed with fatty liver or any other disability manifesting in elevated liver enzymes. The record also reveals diagnoses of GERD and gastritis. There is no medical opinion of record addressing the etiology of the elevated liver enzymes due to fatty liver, if any, or the etiology of the current gastritis and GERD. Based on the above, a VA examination is warranted to assist in determining the etiology of the claimed gastritis, GERD, and elevated liver enzymes due to fatty liver. Service Connection for Dysthymic Disorder In an August 2010 rating decision, the RO denied service connection for dysthymic disorder, as secondary to fibromyalgia. In a statement received by VA in June 2011, via VA Form 9, the Veteran indicated that she disagreed with the decision to deny the claim of service connection for dysthymic disorder. The claim of service connection for dysthymic disorder must be remanded to allow the RO to provide the Veteran with a Statement of the Case on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, the issue will be returned to the Board after issuance of the Statement of the Case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the issues of service connection for gastritis, GERD, elevated liver enzymes due to fatty liver, and dysthymic disorder are REMANDED for the following action: 1. Provide the Veteran with a Statement of the Case as to the issue of service connection for dysthymic disorder, as secondary to service-connected fibromyalgia. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2013). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. Schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any current gastritis, GERD, and elevated liver enzymes due to fatty liver. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history (to include any relevant in-service and post-service injuries/diseases), an examination, and any necessary testing, the VA examiner is asked to offer the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that gastritis and/or GERD had its onset in service or is otherwise related to service? b) Is it at least as likely as not (50 percent probability or more) that gastritis and/or GERD is caused by the service-connected fibromyalgia? c) If not caused by the service-connected fibromyalgia, is it at least as likely as not (50 percent probability or more) that gastritis and/or GERD is aggravated (permanently worsened in severity beyond the natural progression of the disease) by the service-connected fibromyalgia? If the VA physician finds that the gastritis and/or GERD, is aggravated by the service-connected fibromyalgia, he/she should indicate, to the extent possible, the degree of disability before aggravation and the current degree of disability. d) Does the Veteran have a current disability manifesting in elevated liver enzymes? e) If the Veteran has a current disability manifesting in elevated liver enzymes, is it as likely as not (a 50 percent or greater degree of probability) that the disability began during service or is etiologically related to active service? f) If the Veteran has a current disability manifesting in elevated liver enzymes, is it at least as likely as not (50 percent probability or more) that the disability is caused by the service-connected fibromyalgia? g) If not caused by the service-connected fibromyalgia, is it at least as likely as not (50 percent probability or more) that the disability manifesting in elevated liver enzymes is aggravated (permanently worsened in severity beyond the natural progression of the disease) by the service-connected fibromyalgia? If the VA physician finds that the disability manifesting in elevated liver enzymes is aggravated by the service-connected fibromyalgia, he/she should indicate, to the extent possible, the degree of disability before aggravation and the current degree of disability. If the Veteran does not have a diagnosed disability manifesting in elevated liver enzymes, the VA examiner should so state. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 3. After completion of the above and any additional development deemed necessary, readjudicate the claims for service connection for gastritis, GERD, and elevated liver enzymes due to fatty liver, as secondary to service-connected fibromyalgia, in light of all the evidence of record. If the determinations remain adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
  11. Retro pay is paid only one year back in most cases. In rare cases , when there has been a clear and unmistakable error discovered in claims older than one year...a veteran can appeal the effective date past one year to the original date. During your C&P be honest but don't downplay your symptoms or pain level. Only answer questions they have and be to the point. If the examiner tries to sidetrack you; don't give a response or say," I do not mean seem rude, but I am here to discuss my current condition(s) only.I'll be happy to answer any questions you may have about them."
  12. Is your current attorney an accredited Veteran's lawyer?
  13. Veterans won't get the new ruling recognized at the RO or DRO level, they barely understand medical evidence, let alone an overturned ruling for chronic pain. Your appeal can be recognized at the appeal level, in my opinion. Of course, they can get wrong also. Which you keep appealing and appealing and appealing. Never give up and never give in. Keep in mind the language that is being used, Chronic pain is a disability if it impedes earning capacity. For that you don't need a diagnosis, because being in a state of chronic pain will cause you to miss work, which will keep you from getting promoted, getting a raise, or even fired. If you live in an "at will" state, such as Texas, an employer can fire an employee for almost any reason. If you can't keep a job for more than 3-6 months because of your pain, that's also a valid point to bring up in your Notice of Disagreement. Best wishes.
  14. Your welcome. If you do end up getting surgery here's some info to consider. https://www.benefits.va.gov/COMPENSATION/claims-special-hospital_treatment.asp The duration on hospital stays depends on what kind of surgery you will have that will warrant a lengthy hospital stay. Also remember, if your other knee begins or has started bothering you, that's a good indicator to start being seen and build up medical evidence to Secondary connect that knee to your SC Knee.
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