Service Connection Fibro 1977

[SueEdel]

I recently received a denial to SC fibromyalgia. My symptoms started while I was enlisted in the Navy. One of the issues is that it is the term fibromyalgia was not used in medical jargon on a regular basis until about 1988 which is 11 years from my honorable discharge (under medical conditions). Nothing in my military medical records says fibro--but the symptoms--which they were chasing around trying to find a diagnosis were there.

The statement is "SC for fibro is denied because evidence does not show an event, disease or injury in service. You submitted a lay statement to support your claim. A credible lay statement may establish what was seen, heard and directly experienced. The lay evidence was found not to be competent and sufficient in this case to establish a link of nexus between your medical condition and military service or to establish that such a link has been found by a medical professional."

I provided two letter to provide a nexus. One was from my PCP at the VA who has treated me for about 10 years (although recently was removed as my doctor for reasons unexplained to me). The other letter was provided by my rehab chronic pain specialist who has treated me for over 15 years. Both letters follow the sample nexus formula.

I am wondering why they would not consider one of their own doctors a medical professional? For that matter, why a highly respected doctor in the treatment of pain and fibro is disregarded? Why are these considered lay statements and not medical opinions?

[FormerMember]

Mark your calendar. According to VA, we have a problem with suspense dates. We always seem to be just on the wrong side of them. Be especially careful on multiple claims. One devious trick is to deny one claim and fail to mention the others or to vaguely say they are still methodically plodding their way through them (deferred is a term often used). If a year goes by from the claim denied with no appeal of all three, VA will say they were "deemed denied" or you should have "inferred" they were denied because they were never mentioned again. Repeat after me "It's nonadversarial. It's nonadversarial. It's a mistake and I'll wake up from this." This is called divide and conquer.

[SueEdel]

DRO or NOD? How do you decide which is best in your own situation? Trying to weigh my options.

[FormerMember]

When you file your NOD, the road diverges into two paths. You have a choice at that point to go the DRO path or the familiar standard substantive appeal to D.C. Absent any new evidence that is earth-shattering and rebuts their denial/ definitively proves your contentions, a DRO review is pointless. If they have not looked at all the evidence, that might be one reason to keep it local. A reconsideration with a local hearing in front of your rater is a third choice. I did this in 1989 and lo and behold- there were my medical records in my c-file. I was given little or no time to view them and I lost again. Had I had a copy of the c-file, I think a different outcome would have ensued. Asking for a sit down is anathema for VA. They want to deal with you at a distance in an ex parte manner. They dislike frontal confrontations and I guess if my track record was that spotty, I'd be nervous too. It's not unheard of to have a Veteran come unglued at one of these meet and greet hearings.

Since it's a bear to get anyone to communicate with you in a VARO, you can resort to IRIS. Vocalize a desire for a sit down with your hearing officer and explain you wish to refine your argument, teach your blind rater Braille- whatever. Going the DRO route will mean a two year delay and then a possibility of a denial yet again. At that point you'll be getting in line behind all the others who smartly pressed on to D.C. when you turned left at the DRO milepost. Since a substantive appeal also entails about two years, you don't need to be Euclid to figure out the sum of the delay.

The math is definitive. 15% win at the RO. Another 22% of the 50,000 who appeal to the BVA succeed (about 10 K). But see the CAVC data. Fully 60% of the 5,000 who go the extra mile get a JMR, a remand, a vacate with a de novo review or an outright reversal (win). Be sure to put it into perspective, too. 15% of Vets win their requests for DIC, DEA, accrued benefits, added dependents on claims. burial requests and any number of other non-claim requests. When you filter out the inconsequential requests from the heavy duty claims data, this sinks to a 12% claims win rate. That includes DRO reviews.

While it may sound rather disheartening, the statistics have remained static for over one hundred years. At one time I advocated for going to DC as fast as dem feet could get you there. My attorney has always held the reverse-keep it local. I see no point in dealing with uneducated riff-raff who are forced to use a Manual to figure out what day it is, let alone decide your claims with it. If the odds of winning at Poker were better in Las Vegas than the Indian casino up the road from you, and you seriously enjoyed gambling, where would you choose to gamble? Best of luck on this.

cp

[free_spirit_etc]

"One devious trick is to deny one claim and fail to mention the others or to vaguely say they are still methodically plodding their way through them (deferred is a term often used). If a year goes by from the claim denied with no appeal of all three, VA will say they were "deemed denied" or you should have "inferred" they were denied because they were never mentioned again. "

I have been learning a lot about this trick. And a problem is that there are many cases that cover this - and so the BVA will explain why the case you reference doesn't apply to YOUR case, and the case they pick out does.

However, if they use the word "deferred" in discussing your claim -- then I think you have a strong case to argue the claim is still pending and unadjudicated. I think it would be hard for them to argue (and win) the idea that your claim was implicitly denied if you were told it was deferred. Just be very careful about them making ANY mention of that claim / condition AFTER they informed you it was deferred trying to sneakily implicitly deny it.

Edited October 14, 2013 by free_spirit_etc