Should I Apply For Increase In Rating

[Penelope]

Hi Folks -- I have just joined the forum, although I have stopped by in the past. I am at a point where I need some independent advice from those that have dealt with VA.

I have been service connected for Chronic Fatigue Syndrome since 1990. For the first 4 years, the rating was 30%, then they finally determined a rating code and it has been rated at 60% since 1994. Symptoms of chronic fatique syndrome include, but are not limited to sleep apnea, as well as muscle aches and pains, allergies, etc.

My condition has declined in that I now require a CPAP machine any time I sleep, as well as undergoing allergy shots, and injections for various joint pain. I have pretty much dealt with this, however it is getting to a point that I don't know for how much longer I can cope with it all. I currently work a reduced work schedule of 4 days of week, which has helped, but I don't know how much longer I can continue.

It was such a long drawn out process to get my claim finally appealed that I am hesitant to apply for an increase. Most of my medications VA doesn't carry and I use an outside pharmacy. Work is giving me more and more problems about the reduced schedule and it looks like the job I am working may be eliminated in the future. It is a job I can do and have done it for more than 18 years. My husband is a disabled vet, as well, although not service connected. Therefore it would be difficult to face a decrease in my rating. If I wait until 2010, does that mean my rating can't be reduced below 30% because I had 30% for 4 years and 60% for 16 years, or do I start again at 60%.

Any thoughts or advice would be appreciated. Thank you for your time.

[pacmanx1]

More homework for you, reading your post, I see you started off by requesting advice about your claim and not your husband’s. Since you have gotten information on your husband’s claim let’s talk about yours. You say you are SC for Chronic Fatigue Syndrome. In some cases people who have CFS also have: IBS, Fibromyalgia, Depression, headaches, Sleep apnea and other conditions. If you have been treated for these conditions you can file a claim for them as being associated to your already service connected CFS without claiming an increase for CFS. If you have not been treated for these conditions you can have your doctor review your treatment records or perform an exam or refer you to a specialist to determine if you have these conditions and if you do write a statement that he/she believes that they are related to your CFS and then file for service connection for them. Since you are already 60% for CFS and working it would be almost impossible to get 100% for it so try to look at other disabilities to increase your overall service connection. Now back to your husband's if he got out in 1980 and had a motorcycle accident in 1982, he may have a problem with getting service connection for back and hip even though it is in his SMRs. VA may say that his current problem is because of the accident and not his military duties. Hope the best for the both of you.

Hope this make sense.

Edited September 2, 2009 by pacmanx1

[Penelope]

More homework for you, reading your post, I see you started off by requesting advice about your claim and not your husband's. Since you have gotten information on your husband's claim let's talk about yours. You say you are SC for Chronic Fatigue Syndrome. In some cases people who have CFS also have: IBS, Fibromyalgia, Depression, headaches, Sleep apnea and other conditions. If you have been treated for these conditions you can file a claim for them as being associated to your already service connected CFS without claiming an increase for CFS. If you have not been treated for these conditions you can have your doctor review your treatment records or perform an exam or refer you to a specialist to determine if you have these conditions and if you do write a statement that he/she believes that they are related to your CFS and then file for service connection for them. Since you are already 60% for CFS and working it would be almost impossible to get 100% for it so try to look at other disabilities to increase your overall service connection. Now back to your husband's if he got out in 1980 and had a motorcycle accident in 1982, he may have a problem with getting service connection for back and hip even though it is in his SMRs. VA may say that his current problem is because of the accident and not his military duties. Hope the best for the both of you.

Hope this make sense.

Pete -- Your reply makes sense to me. That is the reason we never proceeded any further with my husband's claim 3 years ago. As far as my claim goes, I wouldn't qualify for 100% for CFS as it is listed in the rating codes. I more than qualify for the 60% rating, though. Over the years, I have had my same family doctor who helped me with my VA claim in 1990 and my VA doctor has helped me since I was granted service connection. My VA doctor has stated my medical restrictions are permanent. My VA doctor has stated in my records that I am now diagnosed with Sleep Apnea, and Diabetes and he referred me to another doctor for depression. After a change of hours at work, last year, my CFS episode, was devastating. My original thought was that the initial incident was due to low sugar. My VA doctor didn't seemed to concerned, but after a few days where I was in a fog, I went to the family doctor and he had the sleep studies done. I haven't had another incident, since I was put on the CPAP. The one incident made it clear to me that although I have dealt with my situation, the problem could be more serious than I realized. It is hard for me to determine what is actually a secondary condition to Chronic Fatigue. The sleep apnea makes sense to me as sleep disturbances are a part of CFS. For me this is a slow process because I want to make sure I have everything together before I submit a claim.

I appreciate all the information and advice. It sure is a lot easier talking to people about this now than it was 19 years ago. I thank you all for your participation in this site.

[pacmanx1]

OK, I am a little slow and my brain don't always work right but it does work. If you are rated for one condition at 60 % you can file a claim for IU. which means they will pay you at the 100% rate even though you are not rated as 100%. If your doctor states that your conditions are permanent than you should also think about this.

4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

[LarryJ]

That's correct, pete, she has been rated at 60% since 1994.

Essentially, all she needs is a doc to say that the disability that got her the 60% is also the disability that has caused her to not be able to be "Gainfully Employed" and that this disability is not going to get better, ever.

That'd take care of her and get her the TDIU and the P&T (permanent and total), no future exams scheduled, and that'd open the box for her to get her Chap 35 benefits!

[Penelope]

OK, I am a little slow and my brain don't always work right but it does work. If you are rated for one condition at 60 % you can file a claim for IU. which means they will pay you at the 100% rate even though you are not rated as 100%. If your doctor states that your conditions are permanent than you should also think about this.

4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

Pete -- Thanks again for your reply. At this point, I am employed and don't feel that I would qualify for unemployability. My income is above poverty level for one person. I need to hang on to my job as long as I can. My working environment has changed so much that it is possible my position will be eliminated and I am not sure I will be able find another. The medical insurance is important to my family to cover all the medical expenses. I am not sure how much longer I will be able to continue. I have already had to fight to keep this job twice. They have made it clear that they don't want anyone with medical restrictions. My condition is getting worse, and I am trying to prepare us for down the road. I think it might be best to try see if I would qualify for an increase due to secondary condition. Your help and insight is appreciated.

I really appreciate this board. After reading another post today, I was able to find my BVA decision online. I know I have the orignal here, but haven't read it in a long time. Today, I printed it off and read it. When they made the decision, they considered me for 100% at that time. I forgot all that I went through in working toward that decision.

Again, thanks for your time.