Allen Aggrevation claim question

[Wifey]

We are just about to file a claim, like no later than Sunday, and I'm about to pull the plug on part it.  I'm afraid we will not be getting what we expect.

We filed an intent to file last June 3rd, 2018  We will be filing a claim now for Fibromyalgia and OSA secondary to the Fibro.  My husband is a Gulf War vet (1979-1999 with 2 trips to the Persian gulf) so we are filing the Fibro as a presumptive to that.  We have the current diagnosis, lay statements, proof he was there and all the medical records from his time there to present where he was treated for the symptoms of Fibro prior to the actual diagnosis.

We hired a company, Valor4Vet to review his C-file and all medical records and if they could, write a nexus letter for OSA.  They reviewed everything and said they could provide a nexus for OSA secondary to the Fibro. This is coming from a Dr.  At first I thought great but now I am afraid it will just get rated with 0 compensation.  Here is why and please tell me I am wrong.

He was diagnosed with OSA in 2014 and has used a CPAP machine since then. He was just now diagnosed with Fibro although the symptoms date back to his time in service.  The nexus letter, which should come in an email any minute now, is going to state that the Fibro aggravated the OSA.  Not that it caused it but that it aggravated it.  This is true, even though he sleeps with the CPAP, he wakes up in pain nearly every single night from the pain of the Fibro.

So I have read that you have to establish a baseline for the secondary condition prior to the primary condition aggravating it.  Since he has been sleeping with a CPAP since 2014 and just now got his Fibro diagnosis, I'm afraid his baseline and his current OSA would both be at the 50% level, therefore no compensation would be awarded.  I think it would be quite a stretch to say that his Fibro caused his OSA or that his OSA was "proximately due to" his Fibro.

Am I wrong in how it would be rated?  I don't want to apply for it only to get SC and then get 0%.  I would rather fight the tough battle to get a direct service connection.

[Wifey]

Update, we got the nexus letter and it DOES NOT state the OSA was aggravated by the Fibro.  It says "It is at least as likely as not that the veteran's Obstructive Sleep Apnea is secondary to the veteran's fibromyalgia.  The Dr. states in her rationale a medical reference linking the two conditions and how his particular REM sleep mimicked that in the study showing that his type of OSA was just like that and therefore secondary to his condition.  I'm still worried about the dates of the two diagnosis.  I asked them to add more to the nexus letter stating why Fibro diagnosed in 2019 could be the cause of OSA diagnosed in 2019.  They said it is due to the dates the Fibro started (1996 documented in medical records) and that the symptoms of the Fibro were there for many years prior to the diagnosis.  That made sense to me so I asked them to put that detail in the nexus letter.

[vetquest]

If I remember correctly Fibromyalgia is presumptive for Gulf War Vets.  If this is true you should have everything you need.  If you get a zero rating that is a good start.  I have one condition that was rated at zero and is now rated at 50%.  Put your claim together and submit.  If you have questions about the claim you may redact it and attach it here and someone may be able to help you with it.

[Wifey]

13 minutes ago, vetquest said:

If I remember correctly Fibromyalgia is presumptive for Gulf War Vets.  If this is true you should have everything you need.  If you get a zero rating that is a good start.  I have one condition that was rated at zero and is now rated at 50%.  Put your claim together and submit.  If you have questions about the claim you may redact it and attach it here and someone may be able to help you with it.

Yes, fibro is presumptive and I'm expecting 40% for that. I believe we have that claim tightly locked up but you never know. I'm concerned about the OSA rating that we are trying to tie secondary to the Fibro.

[Richard1954]

It sounds like you covered all the bases. Keep in mind secondary conditions only have to be aggravated by  the primary condition.  You have a letter that states as likely as not caused by the Fibro.  Fibro  is considered a presumptive for Gulf War Vets. He uses a CPAP = 50%  award. The award for the Fibro likely will depend on the symptoms the veteran has.  It is my understanding that they will both be rated separately, then a combined rating will be assigned which is the rating used for compensation purposes.

According to the VA web page:

Fibromyalgia is a presumptive illness for Gulf War Veterans: VA presumes that some health conditions, including fibromyalgia, were caused by military service. As a presumptive illness, Veterans do not have to prove an association between fibromyalgia and their military service. The condition must be at least 10 percent disabling and have first appeared sometime between active duty in the Southwest Asia theater of military operations and December 31, 2021.

 

[Wifey]

9 minutes ago, Richard1954 said:

It sounds like you covered all the bases. Keep in mind secondary conditions only have to be aggravated by  the primary condition.  You have a letter that states as likely as not caused by the Fibro.  Fibro  is considered a presumptive for Gulf War Vets. He uses a CPAP = 50%  award. The award for the Fibro likely will depend on the symptoms the veteran has.  It is my understanding that they will both be rated separately, then a combined rating will be assigned which is the rating used for compensation purposes.

 

Yes, that is basically my question...when a secondary condition is service connected based on a primary condition "aggravating " it, it falls under the Allen Aggravation rules. That says that the secondary condition can only be compensated for the difference between the baseline (degree of illness prior to aggravation) and the post aggravation.  So in my husband's case he used a CPAP prior to the Fibro and after. 50%-50%=0%. What the Fibromyalgia has done is make his sleep worse due to the pain. He wakes up in pain. 

I'm glad she didn't say "aggravated by" . She is reworking the wording to make it clearer. 

[Richard1954]

On 5/31/2019 at 5:35 PM, Wifey said:

based on a primary condition "aggravating " it, it falls under the Allen Aggravation rules

I have to admit I have no idea what you are talking about. I have dealt with the va claims system since 1986 and I have 4 conditions secondary to that have been rated fully...  I don't understand how the va or anyone for that matter could determine that a medical condition was aggravated and how much it was aggravated before it became a secondary issue.. I guess when I get some time I will look up the aggravation rules