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Fibromyalgia and Social Security Disability

Fibromyalgia is a disorder characterized by chronic pain, tenderness in the muscle, joints, and soft tissue.  This condition has been linked to fatigue, sleep problems, chronic headaches, and depression, memory and concentration problems.

If you are considering filing for Social Security Disability due to Fibromyalgia, the condition must be diagnosed by the appropriate specialist and the impact on your inability to work must be properly documented.

It is important that you undergo a physical examination to confirm the diagnosis and establish treatment with a rheumatologist. Once you establish treatment with a rheumatologist, it is imperative that your rheumatologist complete a Residual Functional Capacity form (“RFC”). This form gives your rheumatologist the opportunity to describe how your disability affects your ability to work. 

Since a diagnosis alone will not be enough to prove disability, it is absolutely necessary that your records show all of your symptoms and your limitations. For this reason, during each visit with your rheumatologist, you should address the intensity, location, and frequency of your pain.  For example, if you experience diffuse muscle and joint pain make sure that you describe the level of pain that you feel on a scale from 1-10, whether the pain was aching, throbbing, burning, etc., and if it interferes with your daily activities. You may want to keep a pain diary to help remember the symptoms you experienced on a daily basis. Other symptoms may include: numbness and tingling, chronic fatigue, morning stiffness, muscle weakness, irritable bowel syndrome, and panic attacks.

Some people with fibromyalgia may become irritable, easily upset and commonly suffer from depression, memory problems, insomnia, anxiety, and difficulty concentrating. These psychological symptoms should also be documented and addressed with your doctor.  Depending on the severity of the psychological condition, your doctor will decide to refer you to a psychologist or psychiatrist.  It is not uncommon to suffer from psychological symptoms especially after learning that you suffer from a medical impairment that now renders you disabled and unable to work. 

If you plan on applying for social security disability benefits, it is imperative that you work with your doctors and hire a qualified Social Security Attorney. A qualified Social Security Attorney will help develop the record and present the best case before the United States Administrative Law Judge.

For Questions About Your Disability Claim... Contact Us

by Attorney Wendy Rivera
October 13, 2011

Earlier Effective Date for VA Service Connected Compensation

Earlier effective dates

I have received a lot of questions about effective dates recently. You can read our prior post about this here. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area.

When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to service. The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award. This is the date from which the VA determines the veteran should receive compensation.

In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence. This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse). But this concept of reopening a claim is not true when it comes to effective dates.

The only time to contest the effective date of an award is within the appeal period of the decision. So if the Board of Veterans Appeals’ issues a decision and gives an effective date, then the veteran has only 120 days to appeal that decision. If the regional office (RO) issues a decision on the effective date, the appeal period can range from 60 days – if it was a Statement of the Case – or longer – if it was a rating decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date. The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases.

The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge. It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently:when the VA knew what.

Two areas that I often find effective date mistakes in are cases regarding Agent Orange and PTSD . Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation. The Nehmer rules call for much more favorable decisions on effective dates,often going back years to when the veteran first applied and not just when the veteran reopened. The recent new wave of Agent Orange cases related to Ischemic Heart Disease, Parkinson’s and chronic B cell leukemia has led to a flood of decisions that deal with effective date. In these cases, it is vitally important veterans make sure that the VA determined the correct effective date when the award is granted.

In PTSD cases, I find that by the time the veteran comes to me for help, he had applied and been denied multiple times before. This scenario is particularly true for Vietnam veterans. So many of the Vietnam veterans suffered from PTSD for decades before the VA would even admit the existence of the disease. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file. So if the veteran had applied for compensation for PTSD and been denied multiple times since 1980, and the VA finally grants the case because of a discovery of a service record ( such as an After Action Report showing the veteran was in combat, or documentation showing that the veteran was given a Bronze Star), then the veteran has an opportunity to collect compensation all the way back to the original claim.

In short, it is important to understand that the veteran has one real chance to make the VA get the effective date right, and that is when the award is granted. If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails.

For Questions About Your Disability Claim... Contact Us

by Matthew Hill
October 11, 2011

Secondary Service Connection

What is Secondary Service Connection?

Most veterans seeking compensation through the VA are aware that they are entitled to file for service-connected disability benefits. Service-connected disability benefits are awarded for injuries or conditions that were incurred in or aggravated during active military service. However, many veterans are not aware that in addition to service-connected benefits, there may also be entitlement to “secondary” service-connected benefits.

Secondary service connection is when a service connected injury or condition causes a new disability or aggravates a non-service connected disability. For example, if a veteran is service-connected for diabetes and years later develops heart disease as a result of the diabetes, the veteran may be eligible for secondary service connection of the heart disease. The veteran would have to prove through medical evidence (most likely through an expert medical opinion) that the non-service connected heart disease was caused by the diabetes.

It is also important to note that the secondary disability can be much more severe than the disability that is already directly service connected. I see this scenario play out with two common disabilities. The first is diabetes. The most common rating for diabetes is 20%. A 20% rating requires the veteran to be on medication and that the veteran restricts his or her diet. However, it is common knowledge that diabetes can lead to many other disabilities. For example, in addition to the heart problems listed above, diabetes can also lead to other conditions such as neuropathy, hypertension, nephropathy and retinopathy, to name a few. I have represented multiple clients that were initially only rated at 20% due to service connected diabetes; however, as a result of their other, more severe secondary disabilities, they were able to obtain a higher rating through the VA. In fact, some of these veterans have obtained a combined rating that equaled 100%, and sometimes even higher through special monthly compensation, and their only initial service connected disability was diabetes, which was rated at 20%.

The other scenario where I see secondary service connection play a significant factor involves veterans with back conditions. The VA measures back disabilities based on how far forward an individual can bend. Often, I will see someone with a 20% rating for a back, but it is clear that the veteran is completely unable to work. In these situations it is important to identify any secondary disabilities such as radiculopathy (pain, numbness and weakness in the legs caused by the back pain) and/or depression due to the back condition. Again, when the VA’s rating for the back doesn’t match the actual impact the disability is having on the veteran, I look to see what other disabilities the back causes in case the veteran may be entitled to a higher rating. It is not uncommon for the VA to miss secondary conditions that should be rated.

The important lesson to take away is that if you file a claim for service connection or if you are already service connected, always make sure to consider whether or not there are any conditions that may be “secondarily” service connected.

I always advise veterans filing for service connected compensation to list not disabilities but symptoms. In other words, the veteran should file for back disability and leg weakness or just a claim for degenerative disc disease. The VA has a duty to look at all the evidence and determine the totality of the claim. But it is up to you as the veteran to make sure that you are listing all the symtpoms from which you are suffering. Even if you do not have any secondary conditions at the time of the initial filing, if a new condition develops later on, you can always file a new claim for secondary service-connection at a later date.

For Questions About Your Disability Claim... Contact Us

by Matthew Hill
October 4, 2011

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