Reading a VA Decision letter for fibromyalgia that might have combined or subsumed ratings?

[Goonie]

 

Quote

Evaluation of fibromyalgia (to include claim of neck condition with diagnosis of cervicalmialgia and intermittent right upper extremity radiculopathy) currently evaluated as 40 percent disabling.

We have assigned a 40 percent evaluation for your fibromyalgia base on widespread musculoskeletal pain and tender points that:

• Are constant
• Are near constant

Additional symptom(s) include:

• Headache
• Irritable Bowel symptoms
• Stiffness

I've also posted this over at PEB forums and I'd really like to get a clear answer because I think understanding what they mean in how this is written will be very helpful. 

So this is reproduced verbatim in text and format from a 2012 decision letter based on only my service records. In the heading, it says "(to include claim of neck condition...)," does that mean the neck condition could be rated at some % but they combined it or subsumed it with fibromyalgia to raise that rating to 40% and avoid pyramiding? 

What about the things listed under "Additional symptom(s) include:"? Were the combined somehow or are they just noting other symptoms? 

Thank you in advance! 

[broncovet]

My advice is that if you feel your rating is too low, or that you feel you  should ALSO be rated for other conditions, then the procedure is to file a nod and appeal it, pretty much the way the rest of us do.  

If, indeed, you were lowballed or VA improperly combined disabilities, then you wont be the first.  More than  2/3 of BVA decisions overturn VARO decisions with an outright reversal or remand, so the odds are in your favor. 

I can not speak for PEB, Im only familiar with VA.  

I also know that many times PEB ratings are low. 

If you have never applied with the VA before, then do so at your earliest convience, but not until you exit service if you have not gotten out yet.  

Its important to apply within a year of exit of service for many reasons.  

By the way, I do agree with your interpretation.  It sounds like "to include claim of neck condition" likely means, just like you said, they could have given a seperate rating for neck condition but apparently did not.  

I also concur on the lack of clarity of "additional symptoms inclue"..its unclear if those are already rated and included, or if it means you can apply for another condition with these additional symptoms.  

You have to understand that the rating specialists who type up and award or deny VA disabilility ratings :

1.  Are not perfect, and frequently make mistakes.

2.  They are not lawyers, and are often poorly trained.

3.  Are pressured to "put out" many decisions in a short period.

4.  Have virtually no accountability for errors.

5.  Their decisions are quite frequently overturned by the board of Veterans appeals.  

6.  Many also contain "Clear Unmistakable Error". 

7.  Its "almost automatic" that Veterans need to appeal to get benefits, its rare when Vets are awarded significant benefits (100 percent) without one or more appeals.  

[Richard1954]

14 hours ago, Goonie said:

"(to include claim of neck condition...)," does that mean the neck condition could be rated at some %

No, it means they consider the neck ,  part and parcel of the claimed condition  and does not warranted a separate rating

Code 5025: Fibromyalgia is a disease that causes pain and sensitivity throughout the entire body. The pain must be present on both sides of the body and both above and below the waist to be rated under this code. Likewise, a rheumatologist must evaluate and diagnose the condition for it to be rated under this code.

If the pain is constant and is resistant to treatment, then it is rated 40%. If the pain is not constant, but recurring and present 1/3 of the time, then it is rated 20%. As long as the pain requires continuous medication to control it, it at least receives 10%.

Check out   http://www.militarydisabilitymadeeasy.com/diseasesofthemusculoskeletalsystem.html#fibro  to review the rating guidelines 

 

 

Edited December 11, 2019 by Richard1954

[Goonie]

5 hours ago, Richard1954 said:

No, it means they consider the neck ,  part and parcel of the claimed condition  and does not warranted a separate rating

OK, that's what I thought since they refused to split it out. I didn't want to over-complicate the original post so I'm hoping folks can help me with the next steps related to this. 

First question, does this mean they shouldn't combine a favorable C&P exam finding for IBS with the fibromyalgia? I read some of the appeals cases and in one the judge was explaining that since the condition was maxed without factoring a secondary condition, the secondary condition should be rated separately. I don't have the exam report yet but I think I got a C&P examiner that was trying to help because he said he was and he told me he put the number of IBS episodes at the highest number the form would allow him to. He also asked why I hadn't submitted for headaches or an increase on my anxiety yet. If it turns out he was being disingenuous it would be terrifying because he seemed so genuinely nice. Service connection should not be an issue, the symptoms are noted in the decision quoted and I had repeated stomach issues in my service record, the IBS is just a lot worse now.

Next, question, should I refiled the neck, carpal tunnel, and cubital tunnel secondary to a service connected shoulder issue (right shoulder impingement, 10%)?  In my most recent C&P exam the examiner noted that the pain in my arm was likely due to my shoulder and I think that's why I got one of those letters saying, "we invite you to file a supplemental claim for right upper extremity cubital tunnel and carpal tunnel syndrome." The shoulder is also unstable and oddly enough it was my counselor talking to me about exercise that pointed out it may be the source of my neck aggravations. When I told him I strained the hell out of my neck a few times when I was trying to use swimming for exercise he brought up the shoulder and when he explained it (turned out he was a big swimmer, swim team at Ohio State and stuff) his explanation made perfect sense because my shoulder is unstable. When I use my right arm a lot of muscles are trying to compensate for the instability, hence possible neck strain. If there's a chance this could somehow drop my fibromyalgia rating, my overall stiffness and pain has gotten significantly worse in general with pain and tension basically everywhere, so I could include that in my statement in support of claim. Does that make sense? Any significant risk in filing?

I have a supplemental claim pending with IBS and some other issues, might get bumped to 100% (the IBS might be the ringer) as is, but I feel like should go ahead and file the neck/cubital tunnel/carpal tunnel claim. Would having additional conditions above and beyond the 95% make the VA more likely to declare it P&T?

Thank you so much for responses so far!