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afrn

My Story With Va Disability

Question

I just recently found this website and would like to share my story and see if anyone has suggestions about it. I was active duty AF and was medically retired in 1998 due to Depression & fibromylgia, I applied for disability with the VA (right after discharge) and it was denied, I appealed and was given a 40% rating for the fibro and nothing for the depression, the letter I received stated that the VA considered it part of the fibro (it was retro from my date of seperation from the AF). In 2011, I applied for an increase and new claim for migraines. I was rated at 70% for the depression and 50% for the migraines and the fibro was continued at the 40%. My question is should it not have been retroactive from the date of the orginal claim, I was not even aware that I could have appealed the date until I read posts on this forum. It is definitely past the one year mark. My question is their anything I can do about it now?

I appreciate any suggestions and thank everyone for their time.

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Hello afrn,

It seems as though you may be able to file a CUE claim which is a Clear and Unmistakable Error on the part of the VA. What my concern is, the VA just not too long ago started accepting Depression as secondary to Fibromyalgia because it use to be considered a part of the fibro as you stated. You stated that you applied for an increase and a new claim for migraines, did you at that time, claim depression? It would be good to see your decision letter to see how it is worded. I am assuming that they gave you the depression at 70% because the most you can be rated for Fibromyalgia is 40%, so in order to increase your rating they gave you a rating for depression. Do you have a C&P exam for depression when you filed for the increase? We could help you more if you good post your decision with the Reasons and Basis for the Decision. Make sure that you leave out your personal information. I'm sure that someone else will chime in once you post that information.

Shyne-I

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“My question is their anything I can do about it now? “

Yes. If the depression was at a ratable level and they denied it saying:

'nothing for the depression, the letter I received stated that the VA considered it part of the fibro ' because obviously they have rated it separately from the fibro since them.

Did you get any C & P exam for the depression?

Did VA give you, in the initial denial for depression, any NSC rating?

If so, you can file a CUE claim. A CUE claim, based on a VA legal error (and in your case that legal

would be the NSC rating in the past decision from what I can see here,and that should have had at least 10% NSC to be a valid CUE.)

Or maybe VA didnt even give you a C & P exam and should have.That would warrant a different type of CUE claim.I wonder what rationale they used for that statement,

We have a wealth of info on CUE here in the CUE (Clear and Unmistakable Error) forum.

I am asking what the NSC rating was percentagewise as well as if you had a C & P exam, because if the depression was not at a medical level of 10 % or more, there would not be a monetary value that CUE involves, that you were deprived of in that decision.

“was rated at 70% for the depression” in 2011,so with that high rating I assume you definitely should have a rating as NSC in the older decision.

“My question is should it not have been retroactive from the date of the orginal claim,”

Since you had re opened and not appealed the 2011 decision the retro you got is legally correctly based on the new claim date.

CUE claims however can recover retro in situations like yours.

Are you still employed and if not ,did VA consider you for TDIU in the most recent decision?

“was medically retired in 1998 due to Depression & fibromylgia, I applied for disability with the VA (right after discharge) and it was denied”

That statement is very surprising to me.

Are you able to scan and attach here, a scan of that older decision? It sounds to me like they really screwed up.

That decision is what you would need for preparing a valid CUE claim.

If you can scan and attach it here we can help more (cover name, address, C file Number)

We need to see the Reasons and Bases part, the evidence list, and hopefully you have the rating sheet as well (and the depression C & P exam results if they gave you one)

I am thinking some VA doc assumed the depression was part of the fibro, and VA ran with that, but it can be rated separately, as your recent award shows.

Worse case scenario is that some VA rater played doctor in assessing the older claim.

It can be fixed from what I see here so far.

However I need to check something because my advise might be halfbaked.......I wonder if the fibro regs in existence in 1998 had been changed since.

Anyone here know?

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I compared the VA's regs on fibro in a 1997 BVA case as well as a 2013 case. The regs have not changed.

Depression can be part of a fibro condition but must be rated separately......
“with or without” is the key wording in the regulation.
VA messed up here in my opinion but others will opine here too.

"The veteran's fibromyalgia has been rated as 40 percent 
disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5025, the 
highest rating available under this code.  This rating 
contemplates widespread musculoskeletal pain and tender 
points, with or without associated fatigue, sleep 
disturbance, stiffness, paresthesia, headache, irritable 
bowel symptoms, depression, anxiety, or Raynaud's-like 
symptoms, that are constant, or nearly so, and refractory to 
therapy. " 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp97/files4/9732781.txt

"Diagnostic Code 5025 as mentioned defines fibromyalgia as including 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.  A Note to Diagnostic Code 5025 provides that 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." 
 
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1317515.txt

Under Diagnostic Code 5025, a rating of 10 percent is warranted for fibromyalgia 
symptoms that require continuous medication for control.  A 20 percent rating is
 appropriate for symptoms that are episodic, with exacerbations often precipitated
 by environmental or emotional stress or by overexertion, but that are present more 
than one-third of the time.  The highest rating of 40 percent rating is warranted for 
symptoms that are constant, or nearly so, and refractory to therapy.  See 38 C.F.R.
 § 4.71a, Diagnostic Code 5025.

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Hi,

Thanks for the input. I am currently working. I will review information when I get home and will scan and post what I can find. It sounds like my ignorance of the system caused me to screw myself. The only reason that I applied for an increase was that started working at the VA and realized that I should have rated differently. The VSO's that I have dealt with are not very knowledgeable, so it is very frustrating. Thanks for the assistance.

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Shyne and I seemed to post the same take on all of this........I didnt see any relies when I first posted my first reply and I think we are in different time zones. but posted almost at the same time ..

I am glad he replied......your post needs as much input asd it can get.

One thing I thought of......

the depression .......the VA appeared to have not rated that as secondary to the fibro in the 2011 award.

Did you have a separate nexus for the depression in the older claim?????

In other words, did you have diagnosed depression maybe from an inservice incident , or any other etiology or cause,

that was not related at all to the fibro?

That would change my opinion here significantly.

...

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