Sue military for vaccinations issue?

[Ace M]

I was discharged from BMT in 09 when all of a sudden i lost all my strength, became fatigued and had pain all over. I was given cervical and lumbar strain for a total of 20% about a yr after my discharge. I have not been able to work a job since my discharge. I have not been able to attend college. I have SSI and receive around $900 total. I have been going to the VA for treatment this entire time and test after test they could not find anything. In 2016 a neurologist diagnosed me with fibromyalgia.

If i file a claim now and i do get compensation but that wont help me from 09 to 2018. My life was destroyed in 09 and my medical issues were a mystery for almost a decade.

Do i have any legal options? Or was it when i signed the papers to enlist i gave all my rights away? If its the latter, i understand and will simply make a claim but for missing out on compensation from 09 to 2018 is a huge sting especially since the doctors simply did not diagnose me. Even though i went to every single test and continued to go on a regular basis.

[broncovet]

Ok, if you "were given 20%" for lumbar and cervical strain, then you applied for some type of VA benefits, even if you dont really remember it.  

As far as VA benefits goes, your effective date is the later of the "facts found" or the date you applied.  

My advice is to go ahead and apply for (VA benefits) for your fibromyalgia, and also apply for TDIU, to include extraschedular IU, if applicable.  That is, you will be seeking an "increase".  

Chances are good, that, if awarded, you wont get anything additional from the period of 2009 through 2018.  

HOWEVER, there are some "angles" which may allow you to collect benefits (retro) from that period.  Here are a few possibilities, which may or may not apply to YOU:

1.  If VA KNEW you are unemployed/unemployable when you applied for benefits, then they should have inferred an application for TDIU.  (Im not able to cite the court cases "by memory", but can maybe look those up for you if you like).  Further, when you apply for TDIU, the VA is supposed to send you a tdiu form and, this gives you an opportunity to apply for other benefits leading up to tdiu because there is no such thing as a "stand alone" TDIU claim anymore.  A tdiu claim is a claim for INCREASE.  

2.  You need to order your cfile.  There is some chance you may have sent in "new and material evidence" and this may succeed in keeping your (increase claim) pending, which could entitle you to additional retro.  see 38 cfr 3.156.  

3.  In some cases, if VA did "not" document sending you your appeal rights, then this tolls your 1 year period and you could actually file a nod to the 20 percent and maybe get a big increase.  

     I recommed you take your entire cfile down to a NOVA attorney, and let him look at it and see if there is a good chance of getting you retro benefits through one of the methods I addressed above, or some others I have not yet mentioned.  

     I dont know how long you have not been working, but TDIU for about 10 years is something close to 300,000 potential retro.  So, even if you had to give up 20 percent of that, it would still leave about 240,000 to you, IF an experienced attorney could get you back benefits.  

     Besides what I mentioned, there is a chance of CUE (clear unmistakbale error), if VA made some important mistakes and they usually do.  

     I read something on "undiagnosed illnesses", but Berta may be able to chime in this more.  Be ready to fight VA to get it, they are unlikely to hand it to you easily.  

     You can contact one or more of these attorneys and they should be able to tell you if they will accept your claim on a contingency or not.  That is, they fight for you and dont get paid until you get paid.  

https://vetadvocates.org/welcome/find-an-attorney/

[Ace M]

Thanks for the information, i have gone over it several times to ensure i understand. When i left BMT the discharge decision was lumbago. I believe i applied when i was still in BMT, i remember a rep coming to visit the enlistees that were in the medical wing that were soon to be discharged. I just looked at my initial rating decision and it states the decision was due to pain on ROM. I applied for several other conditions and an increase in those 2 conditions in 2011 when i had a VSO. In 2015 They made a decision and increased the cervical but not lumbar which brought me to 30% Depression was non service connected at 30% The rest were denied. I appealed at that time stating I could not and have not worked and that I spend most of my time in bed.

I did file for fibromyalgia in 2017 and was denied on 3/18 they stated it was not service connected and that my aches and fatigue in BMT were due to the extensive physical training. When I filed for fibro I also filed for TDIU even though everybody said I shouldn’t because I needed to have a higher rating for TDIU. I figured it couldn’t hurt and would help with back pay if I got it at a later date.

In the fibro denial they stated the TDIU claim will be addressed later by the appeals section because I stated that cervical and lumbar contributed to unemployability. I filed for these online, I did not get a TDIU form.

How would the VA know if I was unemployable?
I did look at my medical records and searched the keyword work and there were instances where I was asked and reported that I was not working. In 2017 Voc Rehab denied me saying that I was unable to work and sent me on the Independent Living plan, I sent that in when I applied for TDIU.

 

I was told by the VSO and other vets that I should not request the C File while I have an active appeal as it may cause delays. So I have not done so.

I believe the undiagnosed illness is referred to as gulf war syndrome. It appears that my illness is now diagnosed as fibromyalgia but the VA is not recognizing it. It appears that the injections I got triggered the auto immune disease. It seems that the highest rating for fibro is 40%, I was advised that it may not be the best idea to claim it because I could get a higher rating with the cervical and lumbar strains. If fibro was approved the strains would be covered by the fibro diagnosis.
 

[broncovet]

You need to request your cfile.  You are "flying in the dark" until you do.  

I think you need to "establish a timeline".  

Example:

Exit from service, 4/09.

Applied for (benefit a, b, c) 4/09.

VARO decision dated _____  Benefit a awarded, benefit b denied, benefit c, denied.

Filed NOD on 8/14/ 09, disputing benefit b and c...etc., etc., 

Soc on date, appeal decision on date, results etc.  

     etc, etc

     The reason you need to do this is to establish (in your own mind, after all, its you who is appealing, since you apparently dont have a representative.) which benefits are "pending", which are final, which are appealable, which are in appeals, etc.  

     Or you can seperate them by each issue filed.  You know, TDIU filed date, etc., etc.  

     To maximize your benefits you need your cfile and a thorough understanding of what/when you filed, and what was the outcome, and what is the outcome of appeals.  

     Important:  There is a 2 step process for appeals, and if you fail to take step 2, your appeal dies.  

1.  File a NOD within a year

2.  File an I9 within 60 days of the SOC.  

     You must do both of these.  

    

[Berta]

Fibromyalgia is presumptive to Gulf War veterans, 

https://www.publichealth.va.gov/exposures/publications/gulf-war/gulf-war-winter-2016/gulf-war-presumptives.asp

https://benefits.va.gov/compensation/claims-postservice-gulfwar.asp

In part:

"undiagnosed illnesses or diagnosable chronic disability patterns, that appeared either during a qualifying period of active service or prior to December 31, 2021, must meet the following conditions:

• There must be no other cause for your disability or illness than service in the Southwest Asia theater of military operations.
• your disability existed for 6 months or more, AND
• If your disability or illness did not appear during active duty in the Southwest Asia theater of military operations, then it must have appeared prior to December 31, 2021, to a degree that is at least 10-percent disabling (for VA rating purposes)."

"I did file for fibromyalgia in 2017 and was denied on 3/18 they stated it was not service connected and that my aches and fatigue in BMT were due to the extensive physical training. When I filed for fibro I also filed for TDIU even though everybody said I shouldn’t because I needed to have a higher rating for TDIU. I figured it couldn’t hurt and would help with back pay if I got it at a later date."

Can you scan and attach their denial here? (Cover C file #, name, prior to scanning it)

What do you get SSI for?

Was VA aware you were on SSI?

 "In 2017 Voc Rehab denied me saying that I was unable to work and sent me on the Independent Living plan, I sent that in when I applied for TDIU."

Did they say you were unable to work due to your  30% SC disability?

Please include in the scans their evidence list for the denial.

 "In 2016 a neurologist diagnosed me with fibromyalgia."

Was this a private doctor? Did you ask VA to obtain his/her records?

Would he be able to provide a strong IMO/IME- medical opinion, to determine- by reviewing ALL of your medical records, when he believed the fibro should have been diagnosed?

I proved my dead husband had 2 AO presumptives the VA never diagnosed or treated- it was malpractice-and a lot of work- AO IHD and AO DMII- I had 3 IMOs for the DMII- Nothing is impossible-

If the doctor is still treating you for fibro- he might render a free opinion.

Was most of your treatment prior to the fibro diagnosis all from the VA?

" believe the undiagnosed illness is referred to as gulf war syndrome."

Yes but GW vets claiming just Gulf War  Syndrome are denied right away- They have to be more specific . VA does not rate "Gulf War Syndrome"

"iappears that my illness is now diagnosed as fibromyalgia but the VA is not recognizing it. It appears that the injections I got triggered the auto immune disease."

That would be a difficult way to prove the claim unless a real doctor ( non VA doctor) gives a full medical rationale for that.

"It seems that the highest rating for fibro is 40%, I was advised that it may not be the best idea to claim it because I could get a higher rating with the cervical and lumbar strains. If fibro was approved the strains would be covered by the fibro diagnosis."

If you have 30% now for depression, and 20 % for the lumber/cervical strain - and get 40% for the fibro VA would have to consider TDIU-
 

However the VA awarded 100% P & T SC PTSD to mu husband (he was dead by then so they could not award TDIU)but in his lifetime his VA SC was only 30% for PTSD. They also awarded him 100% under 1151 and then awarded SMC as well.

Nothing is impossible, That sentence above-involved a LOT of work on my part-however and the VA had all the evidence they needed in his lifetime, but failed to properly award his proper rating....until 2 1/2 years after he died.

If you get fibro SCed and then can prove ( with the retro to help get an IMO/IMO) there might be a way to prove they* misdiagnosed you back to 2009- and that could lead to more retro- but that all sounds simply to say- it will take time and work to accomplish- been there done that so I know Nothing is impossible at all with the VA.

they* I assume the VA treated you all those years

 

 

[Buck52]

you can always request a reopen claim but you lose out on retro, check this link out.

https://www.nolo.com/legal-encyclopedia/reopening-earlier-claim-veterans-disability-compensation.html

[Buck52]

Ms berta on your post above you mention this below, question? how did you prove this with no diagnose? was it after your hubby died? or before & you found the proof?

''I proved my dead husband had 2 AO presumptives the VA never diagnosed or treated- it was malpractice-and a lot of work- AO IHD and AO DMII- I had 3 IMOs for the DMII-''Nothing is impossible-''

Was your hubby diagnose & treated for these diseases  prior to his death from private Dr's or did he get treatment from the VA Dr's for these diseases but was not diagnosed from the VA?

Edited July 4, 2018 by Buck52