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IMEF-Gunny

Re-Opening a 2016 GWI claim - Fibromyalgia DBQ

Question

So, before I knew much about the VA and their love for vets, I submitted my first GWI claim. I filed for symptoms (Stomach issues, sleeplessness, bi lateral arm/shoulder pain, short term memory loss). I had a forgetful C&P doc, I had no idea beforehand what the eam was for, I was nervous as shit and I didn't know enough to press him on examining other issues.

I went 26 years without touching the VA and here I was at a C&P exam. I was rated 30% for IBS, all other contentions denied because dr said I denied having any other issues.

This week I was diagnosed by a family practice NPC with fibromyalgia, they ordered bloodwork to exclede Rheumatoid Arthritis and scheduled me with a rheumatologist in February. Here is my DBQ. Thoughts?

I'm considering a re-open or reconsideration for my initial 6/2016 claim. My NOD is already in for this claim with a request for DRO review. I don't care about back pay  money, just principle, so not worried about losing my initial claim date..

DBQ1 001Redacted.bmp

DBQ2 001Redacted.bmp

DBQ3 001Redacted.bmp

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I'm not the biggest expert on this Gunny, but I'll tell you what I think, and others can chime in. I'll also tell you where to go for the BEST advice on your question.

First, I feel ya about being confused and lost filing that first GWI claim and not knowing what the hell was going on. I did the same thing, and in fact it's been 9 years and my first GWI claim has been denied completely numerous times and is waiting in line for the first shot at the BVA. I have no doubt it will take many more years, and that I'll be dead before it's resolved.

I don't really see anything in your first claim that would connect to fibromyalgia (FM) that would justify you asking to reopen the claim with your new evidence. But you could tie it to your shoulder pain and sleeplessness, so if you want to try that, you probably could. If you don't care about the effective date, a new claim would work just as well. FM is a presumptive under 38 CFR 3.317 as a "Medically Unexplained Chronic Multisymptom Illness." As long as your doctor and you can show that it is FM and not something else (although that diagnosis from the expert rheumatologist would be much more helpful), that it is at least 10% or more disabling, and that it has lasted 6 months or more (chronicity), then it should be presumed as a CMI under this section. 

That means you can claim it connected to the previous claim, if you can tie it to that claim, or file it as a new claim, since it has surfaced prior to the closing date selected by the Secretary of the VA (31 Dec 2021).

For the best help, go to the Self Help Guide at the National Gulf War Resource Center (NGWRC) 

Hope this helps.

Dr. Dave

 

2017-ngwrc-gulde.pdf

Edited by Dr_Dave
updated link to self help guide

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My first claim was for sleeplessness, bi-lateral arm pain, bi-lateral shoulder pain, memory loss-short term and stomach issues. The stomach was rated 30% as undiagnosed illness (IBS) w/constipation/diahrea.

Since that time, I've been diagnosed with Major depressive disorder, PTSD, sleep disorder NOS.

So, my re-open with new & material evidence is in the context that I filed for symptoms of Fibromyalgia, which I have now been diagnosed with.

Much like anything, it's a crap shoot......but, I am a tenacious Marine and will never just go away! Thanks for the input!

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Ok, marine, go "armed with knowledge".  Order your claims file and look for THESE 3 things (Caluza elements) documented in your file.  

1.  Current diagnosis.

2.  In service event or aggravation

3.  Nexus, or doc statement that number one is connected to number 2.  

      Most claims fail to number 2 or number 3 which is missing.  An IMO/IME can fix number 3, but you can not fix an undocumented event EXCEPT by

documenting it, which usually involves buddy letters, or in depth military records which may not have been initiallly available.  If you find a document which confirms number 2, then you can reopen due to new and material evidence by resubmitting evidcence.  

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Is the burden of proof more stringent for a Gulf War veteran to prove, in service event/aggravation when it comes to a FM claim?

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All of the lab work to rule out Rheumatoid Arthritis came back clean, so I will upload to Ebennies. That will help support the previously undiagnosed Fibromyalgia claim. Also, have an appointment with a Rheumatologist coming up in December.

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
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    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

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