Separating disabilities joined in a rating
Question:
I received a rating of 60%, but only received 20% for fibromyalgia even with constant and refractory symptoms and to top that off they included my IBS in that 20%. If I did not have fibromyalgia I should have gotten 30% just for the IBS. I am familiar with the final interpretation for Fibromyalgia, but I am unsure of how to appeal the combination of two seperate diagnosis. What is the best way to appeal the combination of fibromyalgia and IBS?
Answer:
To begin, I'll give you the citations that were used in my appeal and in the final decision by the BVA as conclusions of law warranting service-connected for IBS.
Service-connection for IBS is warranted under: 38 USCA 1110, 1117, 1131, 5107 (West 2002 & Supp. 2005) and 38 CFR 3.303, 3.310, 3.317 (2005).
First, when I appealed I was sent to get the typical C&P exam and I asked the examiner direct questions regarding their experience with FMS and IBS diagnoses and how they saw the two; as either coexisting conditions or part and parcel to the same disease (FMS). The examiner replied with the right answer. I did my homework before going by reading up on FMS and how it is diagnosed and the literature that unequivocally states IBS is a coexisting condition and not merely a sign(s) or symptom(s) of FMS. This is the key factor! Get the examiner to document in his C&P report that FMS and IBS are coexisting conditions and neither diagnosis is dependant on the other for an independent diagnosis.
Second, when the appeal is written it is imperative to provide the rheumatology diagnostic criteria for FMS and cite the most recent credible medical source for it. Also, it is equally imperative to provide the same for IBS and its medical category as a gastrointestinal disease – not a rheumatologic disease (which FMS is). Hence, they are two separate and distinct medical disabilities. When the descriptive diagnostic criteria are placed side by side it should be painfully clear to the VA that neither disease are the same and/or share the same sign(s) or symptom(s); thus avoiding the issues brought under 38 CFR 4.14 Avoiding overlapping of evaluations (or pyramiding). The recent changes can be found in the Federal Register Vol 68 No 28 Dated Feb. 11, 2003 and can be found online by doing a Google search for it.
Third, if the veteran has been seeing the same VA doctor as their primary care physician (or civilian primary care physician) who is familiar with their diagnosis (as they likely made them); have the veteran ask their physician to write them a letter in their defense explaining their medical opinion that while FMS and IBS often occur together as coexisting conditions, they are still separate entities which occur independently from one another; and that neither is a criterion for the other in order to make a diagnosis for each. Does this make sense? Also, don't let the terms “syndrome” and “symptoms” to be used interchangeably by the VA as they mean two different things medically as well as legally.
Fourth, it is also important to go online to the BVA and search recent decisions where FMS and IBS have been granted separate service-connections and ratings apart one another. When I was denied by two different regional offices both repeated the same denial, separating IBS from FMS cannot be done. By providing copies/references to actual BVA cases granting same it establishes the undisputable fact that IBS can be separated from FMS, given service-connected status of its own and subsequently rated. One important note is not to let the regional office ignore this evidence in support of the appeal by stating those decisions have nothing to do with the veterans case at hand. While the decisions may not be directly related to him/her and their current claim because they are someone else’s claims/appeal; notwithstanding, these cases are probative to the veterans case in the sense that they prove what the veteran is asking for on appeal and that it can be done.
Another point I drove home in my appeal and statement of the case was HR 1291 Veterans Education and Benefits Expansion Act of 2001, specifically Title II No. 6 where Congress made it perfectly clear that FMS and IBS were considered separate multisymptom illnesses/disabilities. You may also want to refer to Public Law 107-103 Section 202 Gulf War Veterans’ Chronic Disabilities whereby the definition of a “qualifying chronic disability” was expanded to include IBS separate from FMS and CFS.
I also addressed 38 CFR 4.2 Interpretation of examination reports because in one C&P report that was received by the VARO in my case the VSO misinterpreted it and in response stated that dated medical findings (my entire medical history at the VA up to the date of the latest C&P) were useless and not considered. Only C&P exams were considered as current in determining a decision for service-connection and/or rating. I pointed out their blatant error by referring to the part in 4.2 that clearly states:
“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.”
Therefore, the VA is required to consider the veteran’s entire medical history as it paints a far more accurate picture than one 5 min “in and out” C&P exam conducted by a virtual stranger. Meaning, the primary physician’s reports should be given more weight than a C&P exam that is more often than not lacking thoroughness and a complete medical history workup.
It’s been some time since I’ve read it, but you may want to consult the letter/report dated April 14, 2003 that was addressed to Mr. Robert McFeteridge, Director at the Office of Regulations Management Dept of VA Washington DC in reference to: Proposed Rule to Amend Schedule Rating Disabilities – Musculoskeletal System. This letter can be found online by doing a Google search with the above name and title of the letter/report.
Lastly, throughout the appeal it should be repeated (in the appropriate places) that FMS does not equal IBS and vise versa. It’s important to be redundant in stressing they are two separate and distinct multisymptom illnesses with their own independent diagnostic criterion (and that neither sign(s) nor symptom(s) of each are overlapping) recognized by both the medical and legal communities.
I received a rating of 60%, but only received 20% for fibromyalgia even with constant and refractory symptoms and to top that off they included my IBS in that 20%. If I did not have fibromyalgia I should have gotten 30% just for the IBS. I am familiar with the final interpretation for Fibromyalgia, but I am unsure of how to appeal the combination of two seperate diagnosis. What is the best way to appeal the combination of fibromyalgia and IBS?
Answer:
To begin, I'll give you the citations that were used in my appeal and in the final decision by the BVA as conclusions of law warranting service-connected for IBS.
Service-connection for IBS is warranted under: 38 USCA 1110, 1117, 1131, 5107 (West 2002 & Supp. 2005) and 38 CFR 3.303, 3.310, 3.317 (2005).
First, when I appealed I was sent to get the typical C&P exam and I asked the examiner direct questions regarding their experience with FMS and IBS diagnoses and how they saw the two; as either coexisting conditions or part and parcel to the same disease (FMS). The examiner replied with the right answer. I did my homework before going by reading up on FMS and how it is diagnosed and the literature that unequivocally states IBS is a coexisting condition and not merely a sign(s) or symptom(s) of FMS. This is the key factor! Get the examiner to document in his C&P report that FMS and IBS are coexisting conditions and neither diagnosis is dependant on the other for an independent diagnosis.
Second, when the appeal is written it is imperative to provide the rheumatology diagnostic criteria for FMS and cite the most recent credible medical source for it. Also, it is equally imperative to provide the same for IBS and its medical category as a gastrointestinal disease – not a rheumatologic disease (which FMS is). Hence, they are two separate and distinct medical disabilities. When the descriptive diagnostic criteria are placed side by side it should be painfully clear to the VA that neither disease are the same and/or share the same sign(s) or symptom(s); thus avoiding the issues brought under 38 CFR 4.14 Avoiding overlapping of evaluations (or pyramiding). The recent changes can be found in the Federal Register Vol 68 No 28 Dated Feb. 11, 2003 and can be found online by doing a Google search for it.
Third, if the veteran has been seeing the same VA doctor as their primary care physician (or civilian primary care physician) who is familiar with their diagnosis (as they likely made them); have the veteran ask their physician to write them a letter in their defense explaining their medical opinion that while FMS and IBS often occur together as coexisting conditions, they are still separate entities which occur independently from one another; and that neither is a criterion for the other in order to make a diagnosis for each. Does this make sense? Also, don't let the terms “syndrome” and “symptoms” to be used interchangeably by the VA as they mean two different things medically as well as legally.
Fourth, it is also important to go online to the BVA and search recent decisions where FMS and IBS have been granted separate service-connections and ratings apart one another. When I was denied by two different regional offices both repeated the same denial, separating IBS from FMS cannot be done. By providing copies/references to actual BVA cases granting same it establishes the undisputable fact that IBS can be separated from FMS, given service-connected status of its own and subsequently rated. One important note is not to let the regional office ignore this evidence in support of the appeal by stating those decisions have nothing to do with the veterans case at hand. While the decisions may not be directly related to him/her and their current claim because they are someone else’s claims/appeal; notwithstanding, these cases are probative to the veterans case in the sense that they prove what the veteran is asking for on appeal and that it can be done.
Another point I drove home in my appeal and statement of the case was HR 1291 Veterans Education and Benefits Expansion Act of 2001, specifically Title II No. 6 where Congress made it perfectly clear that FMS and IBS were considered separate multisymptom illnesses/disabilities. You may also want to refer to Public Law 107-103 Section 202 Gulf War Veterans’ Chronic Disabilities whereby the definition of a “qualifying chronic disability” was expanded to include IBS separate from FMS and CFS.
I also addressed 38 CFR 4.2 Interpretation of examination reports because in one C&P report that was received by the VARO in my case the VSO misinterpreted it and in response stated that dated medical findings (my entire medical history at the VA up to the date of the latest C&P) were useless and not considered. Only C&P exams were considered as current in determining a decision for service-connection and/or rating. I pointed out their blatant error by referring to the part in 4.2 that clearly states:
“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.”
Therefore, the VA is required to consider the veteran’s entire medical history as it paints a far more accurate picture than one 5 min “in and out” C&P exam conducted by a virtual stranger. Meaning, the primary physician’s reports should be given more weight than a C&P exam that is more often than not lacking thoroughness and a complete medical history workup.
It’s been some time since I’ve read it, but you may want to consult the letter/report dated April 14, 2003 that was addressed to Mr. Robert McFeteridge, Director at the Office of Regulations Management Dept of VA Washington DC in reference to: Proposed Rule to Amend Schedule Rating Disabilities – Musculoskeletal System. This letter can be found online by doing a Google search with the above name and title of the letter/report.
Lastly, throughout the appeal it should be repeated (in the appropriate places) that FMS does not equal IBS and vise versa. It’s important to be redundant in stressing they are two separate and distinct multisymptom illnesses with their own independent diagnostic criterion (and that neither sign(s) nor symptom(s) of each are overlapping) recognized by both the medical and legal communities.
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