The courts and the regulations does allow the VBA to rebut presumption per 38 U.S.C §1113 and 38 CFR §3.317 (a)(7).  They can call into question the diagnosis you have if it does not have a good rationale, is not done by an expert in the field of medicine, or does not follow a standard (well approved) up-to-date case definition of that CMI. The expert has to note any and all illnesses in your records over the years and address why they are not the cause of your CMI.  Remember that these are illnesses of exclusion, that is, of unknown causes.

 

  This chapter covers only diagnosed CMIs covered by [38 CFR §3.317(a)(2)(i)(B)].  To make a claim for undiagnosed illness in Persian Gulf veterans, please go to Chapter II.  This chapter of the guide is about the diagnosed, medically unexplained chronic multi-symptom illness (CMI) such as, but not limited to, chronic fatigue syndrome (CFS), fibromyalgia (FM), and functional gastrointestinal disorder (FGID) which includes Irritable Bowel Syndrome (IBS). 

 

  If you have both diagnosed CMIs and undiagnosed symptoms, make sure to file a claim for each diagnosis first.  Never include symptoms of your diagnosed CMI's (such as CFS, FM, or IBS) in your claim for undiagnosed illness.

 

  If you confuse the issues in your claim, that may delay your claim.  It may even increase your chance of denial by confusing the adjudicator.  Some veterans have success by filing only for their diagnosed CMI's first.  Then, after those claims are granted, they go back and file for any remaining undiagnosed symptoms.

 

What is a medically unexplained chronic multi-symptom illness (MUCMI)?

  38 CFR §3.317(a)(2)(i) reads as follows:

For purposes of this section, a qualifying chronic disability means a chronic disability resulting from   any of the following (or any combination of the following):

            (A) An undiagnosed illness;

(B) A medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as:

                        (1) Chronic fatigue syndrome;

                        (2) Fibromyalgia (FM);

                        (3) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases).

 

  Sub-paragraph (B)(1-3) is this chapter's topic.  Your claim is not limited to CFS, FM, or functional gastrointestinal disorders.  Any diagnosis you have which meets the 'signs and symptoms' criteria and which is also medically unexplained chronic multi-symptom can be used to file a claim under 38 CFR §3.317(a)(2)(i)(B).

 

  Medically unexplained has a very similar meaning to ‘syndrome’, 'functional', 'somatoform', and 'idiopathic' in medical terminology when diagnosing a condition.  If your doctor diagnoses you with something, and you think it may be related to your service in Iraq or the Persian Gulf, it is appropriate to ask more questions about the diagnosis, to find out if it is medically unexplained, syndrome, functional, or somatoform.  If the illness is also chronic (you have it for longer than six months), and multi-symptom, either by itself or together with other medically unexplained conditions, then it may be part of your claim for VA compensation under 38 CFR §3.317(a)(2)(i)(B).  If you are diagnosed with a medically unexplained chronic multi-symptom illness by your doctor, he will need to state in your record that it is medically unexplained. Your POA will address a part of the M 21-1 on this, too, in his cover letter.

 

 

Other MUCMI’s?

  All illnesses named in 38 CFR §3.317(a)(2)(i)(B), or which meet the same criteria, have been determined by law, after scientific review of medical studies, as being 'at least as likely as not' connected to service in the Southwest Asia Theater (SWA) in the year 1990 or later.  So in that sense, whether you have 'undiagnosed illness', CFS, FM, IBS, FGID or a similar somatoform diagnosis not specifically named in the CFR, you have 'Gulf War Illness.'

 

What makes these 38 CFR §3.317(a)(2)(i)(B) diagnoses different from undiagnosed illness?

  In truth, each of the CMI's covered by 38 CFR §3.317(a)(2)(i)(B) contains a subset of symptoms which closely overlaps at least one of the symptoms associated with Gulf War Illness.  However, once you have the diagnosis, you are required by law to file for compensation benefits under that diagnosis, not claim it as 'undiagnosed illness.'

 

Why are diagnosed CMI's done as a separate claim from undiagnosed illness?

  The regulation 38 CFR §4.14 Avoidance of pyramiding[1] is why you cannot claim the same symptom under two different illness.  If you file in a way that is essentially asking the VA to compensate you twice for the same symptom (i.e., once as part of CFS and again as part of undiagnosed illness), it is highly likely that your claim will be delayed, denied, or both.

 

 

What diseases are specifically mentioned in 38 CFR §3.317(a)(2)(i)(B)?

  The section mentions CFS and FM by name.  It also lists several functional gastrointestinal disorders: irritable bowel syndrome (IBS), functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphasia.  The illness of CFS, IBS, and FM are the three the VBA has presumed since the regulation change in July 2003; they are also the only ones in 38 U.S.C. §1117 as the examples.  As we stated, you may claim another diagnosis per medically unexplained CMI which meets the criteria outlined in the 38 CFR §3.317 note section.

 

What diseases other than those named in 38 CFR §3.317(a)(2)(i)(B) are allowed?

  There is no list for the 'other' diagnoses.  Each regional office, and frequently each individual claim adjudicator, is on their own when trying to determine if a diagnosis meets the criteria of medically unexplained CMI and the 13 signs and symptoms, or not.  While you must, by law, file any diagnosis under 38 CFR §3.317(a)(2)(i)(B) whether that particular diagnosis is listed there or not, the burden of proof is more like undiagnosed illness.  This is why you need to be diagnosed by an expert who gives a good rationale and also states that the illness is a medically unexplained CMI.  He will need to state the tests done to rule out other illnesses and how he came to this diagnosis along with how he is an expert in the field.

  Adjudicators are not doctors; if it is not on their list, they may simply deny it unless you go the extra mile to prove the case to them.  It most likely will be denied, so get ready for a DRO formal personal hearing (there is never anything other than a formal one) and then the Board.  Use the law and not your “feeling.”

 

  The VBA Disability Benefits Questionnaires (DBQs) is not set up for diagnosing illnesses but for rating the illness as to the percentage of impairment to one’s earning power, as you are comped for “loss of earning power.”  You need to make sure to write out a good 21-4138 and have your diagnosis done by a doctor who is an expert in the field.  The doctor needs to list the tests to rule out other illnesses and the case definitions used with the year of the definition.

 

  If you have been diagnosed with at least one CMI – CFS, FM, IBS, some other functional gastrointestinal disorder, or any diagnosed condition which falls under the CMI rule – make sure you file for each one as a separate, unique presumptive service-connected disability.  See the example.

How are Chronic Fatigue Syndrome (CFS) and Fibromyalgia (FM) alike?

 

  Fibromyalgia and chronic fatigue syndrome are very similar illnesses.  In fact, up to 70% of their symptoms overlap.  It is this overlap and § 4.14 Avoidance of pyramiding where many veterans have problems in their claims.  This is where one needs to fight for the “most favorable outcome” if you think the VBA under-rated you.

 

Overlapping symptoms include:

A.    muscle pain

B.     fatigue

C.    cognitive dysfunction

D.    sleep disorders

E.     joint pain

 

 

Why is it so important to get diagnosed with CFS (if you already have FM)? 

 

  The VA may grant you a 100% service-connected disability rating on CFS by itself: $3,197 per month, if the symptoms are severe enough.  The highest rating allowed for FM is 40%, $702.00 per month.  That is a large difference in untaxed compensation every month for two different veterans with dependents – identical symptoms but different diagnoses (the FM diagnosis being incomplete or incorrect), all because you got the wrong diagnosis, FM alone, when you really have CFS (either instead of, or in addition to, FM).

 

  Many veterans who meet the criteria for CFS never get properly diagnosed for it.  Instead, they are diagnosed with FM only, denying them the compensation they deserve because of that.

 

Finding the right doctor

 

  The more you know about IBS, FM, and CFS, the better prepared you'll be when trying to find a doctor.  It's a difficult process, and you may need to educate a few health-care professionals along the way.  Be sure you know the list of symptoms and become familiar with the various ways these CMI’s are diagnosed as well as treated.  Informing your doctor of the VA’s War Related Illness and Injury Study Center (WRIISC) is one of the best things you can do for getting yourself some help.  Your doctor can get help from the WRIISC in diagnosing you as well as determining new treatments.

 

  One problem is that no medical specialty has "claimed" CFS to be within their professional clinical regime, so finding a knowledgeable doctor isn't as easy as with most illnesses.  Even fibromyalgia, which is considered closely related to CFS, falls under the auspices of rheumatology.  CFS is not well understood, and many health-care providers have a hard time recognizing it.  Many advocates will tell you to go to the rheumatology clinic to get a diagnosis for CFS, but most doctors will be inclined only to diagnose FM.  In the VAMC, you may not even get that.  This means that the burden of finding someone qualified to treat you falls squarely on your shoulders.  However, you have a number of resources to use in your search:

 

1.      Your primary care provider
If your regular doctor isn't well educated about CFS, see if he or she is willing to learn or knows of someone who is more knowledgeable.

 

2.      Other care providers
If you see a physical therapist, massage therapist, or chiropractor, ask whom he or she would recommend.  http://www.mayoclinic.org/diseases-conditions/chronic-fatigue-syndrome/care-at-mayo-clinic/patient-stories/con-20022009

 

3.      Referral services                                                                                                                         Check with this online service.  It can help; but be aware you may have to pay for these doctors.

http://fmcfsme.com/doctor_database.php

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Chronic Fatigue Syndrome (CFS)

 

  Chronic fatigue syndrome (CFS) is a condition that makes you feel so tired that you can't perform all of your normal, daily activities.  There are other symptoms, too, but being very tired for at least 6 months is the main one.  Myalgic encephalomyelitis (ME) is another name for CFS.  Sometimes you will see the acronym ME/CFS used to refer to CFS.

 

  The illness is characterized by prolonged, debilitating fatigue and a characteristic group of accompanying symptoms, particularly problems with memory and concentration, unrefreshing sleep, muscle and joint pain, headache, and recurrent sore throat.  It is marked by a dramatic difference in pre- and post-illness activity level and stamina.

 

  CFS shares various symptoms with many illnesses, including fibromyalgia, lupus, Lyme disease, sleep apnea, narcolepsy, untreated hypothyroidism, chronic hepatitis, and depression.

 

  The most important thing in a disability claim is that if you notice on your VA problem list the words “Chronic Fatigue,” this doesn’t mean you are diagnosed with “chronic fatigue ‘syndrome’.”  This is because “chronic fatigue” is a symptom for hundreds of other illnesses. That is why there is a CDC list of illnesses that must be excluded before one can be diagnosed with CFS.  If your doctor does not rule these other illnesses out, the VA does have grounds to deny your claim.

 

  As we stated before, CFS did not become presumptive under 38 CFR § 3.317 (a)(2)(i)(B) until the effective date of March 2002.  The effective date per the law means that your claim for the illness under this section as a presumptive illness cannot have been granted earlier than this date.

 

  There is no test for CFS, making it difficult to recognize.  The process of 'testing for CFS' is really a set of tests to rule things out.  Because it is hard to diagnose, many people have trouble accepting their disease or getting their friends and family to do so.  Having people who believe your diagnosis and support you is very important. 

 

  Your tiredness is real.  It’s not “in your head.”  It is your body's reaction to a combination of emotional, environmental exposure and physical factors.  In the case of most Gulf War veterans with CFS, it is the body's reaction to a complex combination of unhealthy exposures and conditions acting together to create the illness.  A Gulf War veteran has been exposed to over twenty different toxins.

Conditions that Exclude a Diagnosis of CFS

1. Any active medical condition that may explain the presence of chronic fatigue, such as untreated hypothyroidism, sleep apnea, and narcolepsy, and iatrogenic conditions such as side effects of medication.
2. Some diagnosable illnesses may relapse or may not have completely resolved during treatment.  If the persistence of such a condition could explain the presence of chronic fatigue, and if it cannot be clearly established that the original condition has completely resolved with treatment, then such patients should not be classified as having CFS.  Examples of illnesses that can present such a picture include some types of cancers and chronic cases of hepatitis B or C virus infection.
3. Any past or current diagnosis of:

major depressive disorder with psychotic or melancholic features	bipolar affective disorders
schizophrenia of any subtype	delusional disorders of any subtype
dementias of any subtype	anorexia nervosa
bulimia nervosa

 

4. Alcohol or other substance abuse, occurring within 2 years of the onset of chronic fatigue and any time afterwards.
5. Severe obesity is defined as having a body mass index equal to or greater than 45.  No "normal" or "average" range of values can be suggested in a fashion that is meaningful.  The range of 45 or greater was selected because it clearly falls within the range of severe obesity.

 

  Any unexplained abnormality detected on examination or other testing that strongly suggests an exclusionary condition needs to be resolved before attempting further classification.  Considerations of exclusionary conditions are important in research studies attempting to identify causes or evaluate therapies specific for CFS.  Exclusionary conditions are important clinically because they are often treatable.  However, once all exclusionary conditions have been fully treated, if the patient still meets criteria for CFS, they would be managed clinically as a CFS patient.

Conditions that Do Not Exclude a Diagnosis of CFS

1. Any condition defined primarily by symptoms that cannot be confirmed by diagnostic laboratory tests, including fibromyalgia, anxiety disorders, somatoform disorders, nonpsychotic or melancholic depression, neurasthenia, and multiple chemical sensitivity disorder.
2. Any condition under specific treatment sufficient to alleviate all symptoms related to that condition and for which the adequacy of treatment has been documented.  Such conditions include hypothyroidism for which the adequacy of replacement hormone has been verified by normal thyroid-stimulating hormone levels, or asthma in which the adequacy of treatment has been determined by pulmonary function and other testing.
3. Any condition, such as Lyme disease or syphilis that was treated with definitive therapy before development of chronic symptoms.
4. Any isolated and unexplained physical examination finding, or laboratory or imaging test abnormality that is not enough to strongly suggest the existence of an exclusionary condition.  Such conditions include an elevated antinuclear antibody titer that is inadequate, without additional laboratory or clinical evidence, to strongly support a diagnosis of a discrete connective tissue disorder.

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CFS Diagnostic Resources

  The VBA rates CFS under 38 CFR § 4.88b - Schedule of ratings - infectious diseases, immune disorders and nutritional deficiencies 6354 Chronic Fatigue Syndrome.  The VBA rule makers stated in the Federal Register that it was placed in this section because “it often involves many body systems, and may be of infectious or immune origin, similar to other diseases in this section.”  So remember, if you do get rated for CFS, you are being rated under the same section as immune disorders.  The VBA uses “A Pamphlet for Physicians” published in May 1992 by the U.S. Department of Health and Human Services, Public Health Service, National Institute of Health (NIH Publication No. 92-484).  When you get a diagnosis, you need to make sure that your doctor uses the case definition and the year of it.  Since there have been changes since the 1992/94 time period and per the CDC website, there are many case definitions.

 

  Per the VBA guideline for a diagnosis and rating of CFS, the following is what you need.  This comes from the Federal Register rule making.

 

These criteria are based on diagnostic criteria for CFS provided in a pamphlet entitled ``Chronic Fatigue Syndrome--A Pamphlet for Physicians'' published in May, 1992 by the U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health (NIH Publication No. 92-484).

    The diagnosis of CFS, according to the NIH pamphlet, requires the presence of two major criteria: (1) The new onset of persistent or relapsing debilitating fatigue or easy fatigability in a person who has no previous history of similar symptoms, that does not resolve with bedrest, and that is severe enough to reduce or impair average daily activity below 50% of the patient's premorbid activity level for a period of at least six months, and (2) other clinical conditions that may produce similar symptoms must be excluded by thorough evaluation, based on history, physical examination, and appropriate laboratory findings. In addition to these major criteria, there must be either at least six of eleven specified symptoms plus at least two of three physical criteria, or at least eight of the specified eleven symptoms.  These criteria are set forth in the final rule in a simplified form that is not intended to be materially different from that contained in the NIH pamphlet.

 

    We have established three criteria for diagnosis:

 

 (1) The new onset of debilitating fatigue that is severe enough to reduce daily activity below 50 percent of the usual level for at least six months,

(2) The exclusion by history, examination and laboratory tests of other clinical conditions that may produce similar symptoms, and

(3) The presence of six or more of the following: acute onset of the condition, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), migratory joint pains, neuropsychologic symptoms, sleep disturbance.

 

    Following the initial six-month period of illness required to establish the diagnosis, some people function well at home and work, while others are partially or totally disabled by the debilitating fatigue and other symptoms, which often wax and wane.  We will evaluate the condition based either on symptoms of the syndrome as they affect routine daily activities or on the periods of incapacitation which result.  While a reduction in daily activities of 50 percent for six months is required to establish the diagnosis, thereafter CFS may be manifested at other levels of severity.  We have thus provided evaluation levels of 10, 20, 40, 60, and 100 percent; the 10% evaluation will be assigned for the condition when symptoms are controlled by continuous medication.  We have also included a note defining incapacitation, a term used in the criteria, as a requirement for bed rest and treatment by a physician.

 

    According to the Centers for Disease Control (CDC), approximately 50 percent of individuals suspected of having CFS show signs of psychiatric illness before the onset of CFS symptoms (``Chronic Fatigue Syndrome'', Disease Directory Document #362100, CDC FAX Information Service, November 18, 1993).  It is also possible that there may be a secondary mental disorder in some cases that encompasses some or all of the neuropsychologic symptoms used to establish the diagnosis of CFS.  This would not, however, negate the diagnosis of CFS.

 

 

  Keep in mind that you could have a different medically-unexplained chronic multi-symptom illness that may be close to CFS but not CFS.  If the doctor diagnoses you with one, make sure he puts it in your records.  Having a diagnosis of a “CFS-like medically unexplained chronic multi-symptom illness with symptoms of “-----” will let you to be able to file as a CMI.  Your VSO should ask the VBA to use the CFS coding which the doctor said closely matched that illness.  Remember that chronic fatigue syndrome can be misdiagnosed or overlooked, because its symptoms are similar to so many other illnesses.  Fatigue, for instance, can be a symptom for hundreds of illnesses.  Looking closer at the nature of the symptoms, though, can help a doctor distinguish CFS from other illnesses.

CFS Primary Symptoms

   As the name chronic fatigue syndrome suggests, fatigue is one part of this illness.  With CFS, however, the fatigue is accompanied by other symptoms.  In addition, the fatigue is not the kind you might feel after a particularly busy day or week, after a sleepless night, or after a single stressful event.  It's a severe, incapacitating fatigue that isn't improved by bed rest and that is often worsened by physical activity or mental exertion.  It's an all-encompassing fatigue that can dramatically reduce a person's activity level and stamina.

  It's important to tell your health care professional if you're experiencing any of these symptoms.  You might have CFS, or you might have another treatable disorder.  Only a health care professional can diagnose CFS.

  People with CFS function at significantly lower levels of activity than they were capable of before they became ill.  The illness results in a substantial reduction in work-related, personal, social, and educational activities.

  What some doctors and raters forget is fatigue of CFS is accompanied by characteristic illness symptoms lasting at least 6 months.  It is not just the fatigue alone but having the other symptoms with the fatigue.  That is why we at the NGWRC tell veterans to get an expert to diagnose them and that studying the research can help.  These other symptoms may include:

 

low grade fever	nonexudative pharyngitis
tender cervical or axillary lymph nodes	muscle weakness
muscle aches	fatigue lasting 24 hours or longer after exercise
headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state)	neuropsychologic symptoms (inability to concentrate, forgetfulness, confusion)
migratory joint pains	sleep disturbance (not  sleep Apnea)

 

 

How is CFS diagnosed?

  A CFS diagnosis is not based on one single test, but a battery of tests, measurements of symptoms, and questionnaires, done to rule out other possibilities and ultimately give the diagnosis of CFS.  You may learn more about the protocol from the Centers for Disease Control by following this link: http://www.cdc.gov/cfs/diagnosis/  or from the Mayo Clinic http://www.mayoclinic.org/diseases-conditions/chronic-fatigue-syndrome/basics/tests-diagnosis/con-20022009

 

  You cannot self-diagnose CFS; it can only be diagnosed by a doctor.  Many other health problems can cause fatigue, and most people with fatigue may have something other than chronic fatigue syndrome.  Filing for CFS without the proper diagnosis will just cause you headaches and a denial.  Get a proper diagnosis first.

 

How is CFS treated?

  Sadly, there is no treatment for CFS itself, but many of its symptoms can be treated.  A good relationship with your doctor is important, because the two of you will need to work together to find a combination of medicines and behavior changes that will help you get better.  Some trial and error may be necessary, because no single combination of treatments works for everyone.  This is not because no one is looking.  Researchers have been looking for treatments for CFS in the main population before we deployed to Desert Storm.  Home treatment is very important.  You may need to change your daily schedule, learn better sleep habits, and start getting regular gentle (light) exercise.  Counseling and a gradual increase in exercise can help people with CFS improve.

 

  Even though it may not be easy, keeping a good attitude really helps.  Try not to get caught in a cycle of frustration, anger, and depression over your pain/ sickness.  Learning to cope with your symptoms and talking to others who have the same illness can help you keep a good attitude.  Getting out to help others can help, too.  Having your doctor work with the WRIISC is your best bet on getting the latest treatments.

 

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Fibromyalgia (FM)

 

  The Department of Veterans Affairs' (VA's) Schedule for Rating Disabilities was updated in 1999 to add Fibromyalgia (FM) as a final rule from the interim rule.  The interim rule adopted as final by this document was effective May 7, 1996 and is the earliest anyone can get a “direct” service connection for FM under diagnostic code 5025.  There was a change to the diagnosing of FM in 2010.  The VBA started to use the DBQ in 2012, and the DBQs are not set up for diagnosing illnesses but for rating the illness for the percentage of impairment to one’s earning power (as you are comped for “loss of earning power”).  You need to make sure to write out a good 21-4138 and have your diagnosis done by a doctor who is an expert in the field.  The doctor needs to list the tests given to rule out other illnesses and the case definitions used with the year of the definition.

 

  As we stated before, FM did not become presumptive under 38 CFR § 3.317 (a)(2)(i)(B) until the effective date of March 2002.  The effective dates, per the law, means that your claim for the illness under this section cannot be granted earlier than this date.  This means if you were diagnosed in 1998 and denied in 2001, then refiled in 2015 and granted the claim, you cannot file for an earlier effective date (EED) based on a clear and unmissable error (CUE) in the 2001 denial.

 

FM Symptoms

  Fibromyalgia has often been called the "great imitator" because so many of its symptoms mimic those of other disorders.  As a result, it can often be difficult to receive a proper diagnosis of FM.  However, there are subtle differences between many of the illnesses and FM.  Learning more about each of these disorders can help you figure out just how FM is distinct from them.

 

Tests for FM

  A rheumatologist can run the tests which you need to rule out the nine conditions.  Only after you test negative for each of these can you be diagnosed with FM.  It is possible to have hypothyroidism and FM at the same time.  In this situation, you cannot win a claim for FM until the hypothyroidism condition has been treated and stabilized for over six months, and the FM symptoms persist.  This is true for many of the other conditions that can exclude a diagnosis of FM.  There are some illness that cannot be excluded.

 

Tender points

  During your physical exam, your doctor may check specific places on your body for tenderness.  The amount of pressure used during this exam is usually just enough to whiten the doctor's fingernail bed.  These 18 tender points are a hallmark of FM.

 

Blood tests

  While there is no lab test to confirm a diagnosis of FM, your doctor may want to rule out other conditions that may have similar symptoms.  Blood tests may include:

 

 

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Common disorders often mistaken as fibromyalgia which need to be ruled out are:

 

1.      Lyme disease

2.      Lupus

3.      Osteoarthritis

4.      Rheumatoid arthritis

5.      Cushing's syndrome

6.      Hypothyroidism

7.      Polymyalgia Rheumatica

8.      Reflex sympathetic dystrophy syndrome

9.      Cervical spinal stenosis

 

Widespread pain and tender points with FM

  The pain associated with FM is described as a constant dull ache, typically arising from muscles.  To be considered widespread, the pain must occur on both sides of your body and above and below your waist.

 

  FM is characterized by additional pain when firm pressure is applied to specific areas of your body, called tender points.  Tender point locations include:

1. Back of the head

2.      Between shoulder blades

3.      Top of shoulders

4.      Front sides of neck

5.      Upper chest

6.      Outer elbows

7.      Upper hips

8.      Sides of hips

9.      Inner knees

 

Fatigue and sleep disturbances with FM

  People with FM often awaken tired, even though they seem to get plenty of sleep.  Experts believe that these people rarely reach the deep restorative stage of sleep (REM).  Sleep disorders that have been linked to FM include restless legs syndrome and sleep apnea.

 

VA Fibromyalgia Examination

 

 Narrative from the VA exam:

For VA compensation purposes, the diagnosis of fibromyalgia (sometimes called fibrositis, primary fibromyalgia syndrome, or myofascial pain syndrome) requires the presence of widespread musculoskeletal pain and tender points (at least 11 positive tender points), Additional findings may also be present[2]: fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.

Widespread pain is defined as pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.  Rule out other diagnostic entities that may be responsible for the symptomatology presented.

 

  While some case definitions may require less time to be diagnosed with FM, to be granted a claim on a presumptive basis you must have the symptoms for over 6 months AND you must be on some kind of treatment protocol.

 

Co-existing conditions with FM

Many people who have fibromyalgia also may have:

 

Chronic fatigue syndrome	Depression	Endometriosis
Migraine Headaches	Tension Headaches	Lupus
Irritable bowel syndrome	Osteoarthritis	Restless legs syndrome
Numbness or tingling of the extremities	Painful menstrual periods	Cognitive and memory problems (sometimes referred to as “fibro fog”)

  Because many of the signs and symptoms of FM are similar to various other disorders, you may see several doctors before receiving a diagnosis.  Your family physician may refer you to a rheumatologist, a doctor who specializes in the treatment of arthritis and other inflammatory conditions.

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What you can do

 

You may want to write a list that includes:

1.      Detailed descriptions of your symptoms

2.      Information about medical problems you've had

3.      All the medications and dietary supplements you take

4.      Questions you want to ask the doctor

 

What to expect from your doctor
In addition to a physical exam, your doctor may check your neurological health by testing:

 

Reflexes	Muscle strength	Muscle tone
Senses of touch and sight	Coordination	Balance

Treatment of FM   

  Patient education, pharmacologic agents, and other nonpharmacological therapies are used to treat FM.  Yoga exercise has been found to improve outcomes for people with FM, as well as a heated swimming pool treatment.  The medical community's understanding of this disease is evolving.  For more in-depth and up-to-date information, visit the websites of the Mayo Clinic or the Centers for Disease Control.  You will need to use the information from their sites with your doctors. 

 

  Only three medications (duloxetine, milnacipran, and pregabalin) are approved by the U.S. Food and Drug Administration (FDA) for the treatment of fibromyalgia.  Duloxetine was originally developed for and is still used to treat depression.  Milnacipran is similar to a drug used to treat depression but is FDA approved only for fibromyalgia.  Pregabalin is a medication developed to treat neuropathic pain (chronic pain caused by damage to the nervous system).[3]

 

Sample Statement in Support of the Claim

Sample VA form 21-4138

 

I am filing for a medically unexplained chronic multi-symptom illness known as Fibromyalgia due to my service in the Gulf War, as I am a Gulf War veteran as shown by my Kuwait Liberation Medal (Iraq Campaign Medal).  My Fibromyalgia is a presumptive illness to my service as per 38 CFR §3.317(a)(1)(i).  The medically unexplained chronic multi-symptom illness known as Fibromyalgia is also listed in the regulation 38 CFR §3.317(a) (2)(i)(B)(2) Fibromyalgia.

 

My medical records at the Minneapolis VA Health Care System clearly show that I was first diagnosed with Fibromyalgia in June 2006.  My records also show how my PCP doctor sent me to a rheumatologist for all of the tests to rule out other illnesses that could be the cause before he diagnosed me with Fibromyalgia.  A rheumatologist is the expert in the field of Fibromyalgia as it falls under their area of studies, and that is why my PCP doctor sent me to one.

 

My records also show that I am on medication to treat my Fibromyalgia and that I have been since 2006.  I turned in a DBQ that clearly shows how I am in pain and refractory to therapy.  I ask that you grant me my claim to the maximum allowed under the rating.

 

  Remember the above is just an example, and it is not on the VA Form 21-4138.  You must download that form and use it.  Form 21-4138 has all of the legal information you need that most veterans leave off their statements when using a blank sheet of paper.  When you leave the legal information out of your statement, most likely your statement will not be used in your claim.

 

  There have been times that veterans get others who have served with them to send in statements, too.  Sometimes those statements are not considered because the ‘supporting’ veteran will not give his SSN.  The VBA needs this information to ensure that the ‘supporting’ statement is from a veteran who was in the same unit at the same time.

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Functional Gastrointestinal Disorders

 

  Functional Gastrointestinal Disorders are a group of digestive system disorders which are medically unexplained and for which there is no structural cause.  The Note to paragraph 38 CFR §3.317(a)(2)(i)(B)(3) states that these:

 

Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.  Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis.

A breakout of the list:

Irritable bowel syndrome (IBS)[4]	Functional abdominal pain	Functional vomiting
Functional constipation	Functional bloating	Functional dysphasia
Functional diarrhea	Functional dyspepsia

 

  All of the above diagnoses count.  By far the most common diagnosis among veterans is IBS.  Most of this section deals with that diagnosis.

 

  While you think you will get compensation for each of the symptoms, the law does not allow for it.  The 38 CFR §4.114 specifies that evaluations of digestive conditions under certain diagnostic codes (DCs) will not be combined with each other or assigned separate evaluations.  All of these will fall under this rule.

 

In July 2011 the VBA amendment changed 38 CFR §3.317(a) (2)(i)(B)(3) IBS to where it now incorporates all of the Functional Gastrointestinal Disorders.  Before July 2011, you could only claim the diagnosis of “IBS” that had an effective date of March 2002 for your GI issue.  This change let the veteran claim the different parts of IBS if he did not have a diagnosis of IBS.

 

  Remember there are tests that must be conducted to rule out any structural disorders before you can be granted a claim.  There are times a veteran is told he may or does have IBS but the tests are not done.  If the VA does not perform the test or if you have some other issue that excludes a diagnosis, your claim may be denied.

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Functional vs structural disorders and FGID

  If there is a structural cause in your digestive tract, any symptom connected to it is not a functional disorder.  Structural causes include, but are not limited to, any tear, ulcer, polyp, cancer, or improperly working valve in your digestive tract.  The VBA does note in the Federal Register and in the M21-1 manual the following:

 

“Important:  FGIDs do not include structural gastrointestinal diseases, such as inflammatory bowel disease (such as ulcerative colitis or Crohn's disease) and gastroesophageal reflux disease, as these conditions are considered to be organic or structural diseases characterized by abnormalities seen on x-ray, endoscopy, or through laboratory tests.”

 

  You cannot, therefore, claim a structural disorder under 38 CFR §3.317, as this is clearly stated in the regulation and the intent of Congress.  You should seek other guidance before you submit a claim to the VA for compensation related to any structural gastrointestinal disorder.  In addition, if you are now rated 30% for IBS, filing for GERD will not get you anything, as it is a structural disorder and you need to show a direct link to the service or a secondary link.  Next, since you have IBS at 30%, you would need to prove the GERD at 60%, and that will take away your IBS compensation.  Very few have been given 60% for GERD.

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The FGID of Irritable Bowel Syndrome (IBS)

 

  Irritable bowel syndrome (IBS) is a disorder characterized most commonly by cramping, abdominal pain, bloating, constipation, and diarrhea.  IBS causes a great deal of discomfort and distress, but it does not harm the intestines, does not lead to a serious disease, and does not cause cancer.  Most people can control their symptoms with diet, stress management, and prescribed medications.  For some people, however, IBS can be disabling.  They may be unable to work, attend social events, or even travel short distances.

 

 As many as 15 percent of the adult population, or even one in five Americans, have symptoms of IBS, making it one of the most common disorders diagnosed by doctors.  It occurs more often in women than in men, and it begins before the age of 35 in about half of people affected.

 

 

What are the symptoms of IBS?[5]

 

  Abdominal pain, bloating, and discomfort are the main symptoms of IBS.  However, symptoms can vary from person to person.  Some people have constipation, which means hard, difficult-to-pass, or infrequent bowel movements.  Often these people report straining and cramping when trying to have a bowel movement but not eliminating any stool, or they are able to eliminate only a small amount.  If they are able to have a bowel movement, there may be mucus in it, which is a fluid that moistens and protects passages in the digestive system.

 

  Some people with IBS experience diarrhea, which is frequent, loose, watery stools.  People with diarrhea frequently feel an urgent and uncontrollable need to have a bowel movement.  Other people with IBS alternate between constipation and diarrhea.  Sometimes people find that their symptoms subside for a few months and then return, while others report a constant worsening of symptoms over time.

 

  You need to keep track of your symptoms, and you need to be proactive in this with a journal of your illness.  This is something we at the NGWRC have told veterans to do for years.  Here you need to track your gut pain, constipation, and diarrhea and how frequently they occur.  You have to describe it, too -- like loose stools, watery stools, or hard stools.

 

  If your symptoms are so bad that you have bowel movements in your pants, state that and tell your doctor.  Your VA PCP can get you pads or Depends that the VA will mail to your home.  Let your POA know about this issue, too.  It will help in your claim and add a secondary issue to the IBS.

 

  In addition, people with IBS frequently suffer from depression and anxiety, which can worsen symptoms.  Similarly, the symptoms associated with IBS can cause a person to feel depressed and anxious.

 

How is IBS diagnosed?

 

physical exam / history	blood tests
stool sample testing	x-rays
sigmoidoscopy	colonoscopy

 

  If you think you have IBS, seeing your doctor is the first step.  IBS is generally diagnosed on the basis of a complete medical history that includes a careful description of symptoms and a physical examination.  Bleeding, fever, weight loss, and persistent severe pain are not symptoms of IBS or any other FGID’s and may indicate other problems such as inflammation or, rarely, cancer.

 

  There is no specific test for IBS, although diagnostic tests may be performed to rule out other problems.  These tests may include stool sample testing, blood tests, and x-rays.  Typically, a doctor will perform a sigmoidoscopy, or colonoscopy, which allows the doctor to look inside the colon.  This is done by inserting a small, flexible tube with a camera on the end of it through the anus.  The camera then transfers the images of your colon onto a large screen for the doctor to see it.

 

  If your test results are negative, the doctor may diagnose IBS based on your symptoms, including how often you have had abdominal pain or discomfort during the past year, when the pain starts and stops in relation to bowel function, and how your bowel frequency and stool consistency have changed.  Many doctors refer to a list of specific symptoms that must be present to make a diagnosis of IBS.

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How does stress affect IBS?

  Stress—feeling mentally or emotionally tense, troubled, angry, or overwhelmed—can stimulate colon spasms in people with IBS.  The colon has many nerves that connect it to the brain.  Like the heart and the lungs, the colon is partly controlled by the autonomic nervous system, which responds to stress.  These nerves control the normal contractions of the colon and cause abdominal discomfort at stressful times.  People often experience cramps or “butterflies” when they are nervous or upset.  In people with IBS, the colon can be overly responsive to even slight conflict or stress.  Stress makes the mind more aware of the sensations that arise in the colon, making the person perceive these sensations as unpleasant.

 

  Some evidence suggests that IBS is affected by the immune system, which fights infection in the body.  The immune system is affected by stress. 

  The following example is using the dates of the times of the decision.  That is why the end date is 2016.

Sample Statement in Support of the Claim VA 21-4138

  The Claimant would like to reopen his claim that was filed in February 2010 and decided 22 August 2012 for the issue of irritable bowel syndrome (IBS) that is a medically unexplained chronic multi-symptom illness based on a clear and unmistakable errors made by the AOJ in that they did not apply 38 USC §§1117, 1118, the federal register 68 FR 34541, June 10, 2003 and 38 CFR §3.317 (2010) as well as the case law Gutierrez v. Principi, (2004).

 

  The 8-22-2012 decision is in error by stating that there was no nexus to the claimant’s service for the diagnosed IBS.  The decision is in error when it stated that claimant’s STR did not contain any records of treatment for the IBS, any symptoms, or diagnosis; as this is a presumptive illness, the claimant does not need to have evidence if the illness in his STR.  See Gutierrez v. Principi, (2004).  The AOJ did not apply the regulation of presumptive illness of 38 CFR §3.317(a)(1)(i) where the illness at the time of the decision had until 2016 to manifest a degree of 10 percent or more.  Instead, the AOJ erred by stating the need for a nexus of the claimant’s IBS and that it needed to have started in the service.  IBS is a presumptive illness in 38 CFR §3.317(a)(2)(i)(B) (3) Functional gastrointestinal disorders (FGID)(2012).

 

  The claimant’s medical records in 2009 and ever since show that he suffers from severe IBS symptoms. His 21-4138s dated March 28, 2010; June 14, 2011; February14, 2012; and April 2016 are all found in his records.  The claimant’s C&P exam of March 2010 clearly shows that he should be rated the max of 30% as per 38 C.F.R. § 4.114, DC 7319.  We included a DBQ of a GI doctor who has been treating the claimant since 2009.  The DBQ also show a rating of 30% should be granted under § 4.114, DC 7319.

 

(Note: This example is done as a CUE only, as there is no way to do this with N&M.)Top