chibears3531

UPDATE- va.gov closed the "claim" or whatever it actually was. Ebennies is showing the claim is closed too and nothing else appears to be changed. Going forward I'll be looking to see if an attorney or claims agent is willing to take on this CUE going back to 2008 if it's possible. Thanks everyone for your help. You've all been a great source of support as I've lurked around here the last few years.

Thank you Berta. Yes, the VA called CUE on themselves here. My VSO told me that you only get one shot at CUE so he filled only for the EED going back to September 2008, thinking that they might call CUE on themselves. I misremembered the dates in my post earlier. Looking at the decision, the dates were December of 2018 for the intent to file and exactly one year prior in December 2017 that the CUE was back dated to. I can never get dates straight without them starring at me right in the face. Unless I'm reading it wrong the EED doesn't make sense because all the evidence used in the decision was based on a VA c&p while I was still active duty in 2008 and on my military medical records. I suppose the exactly one year prior EED isn't a coincidence though...

I was checking va.gov after receiving the mostly favorable results of an HLR for an earlier effective date claim for migraines where VA called CUE on themselves. I say mostly favorable because the effective date claim went back to 2006. The CUE was instead awarded exactly one year back from the date of the intent to file in March 2019 back to March 2018. That's when I noticed a new claim for increase on va.gov for TBI that I did not submit. That's where it says under evidence gathering "Request 1- 930 rating not addressed see claim notes" I spoke to a VA rep who says that it's an internal review and was about pyramiding TBI and PTSD. I've been mislead by the phone reps before though... Can anyone make sense of this? Edit- in the HLR rating decision code sheet it says "REVIEWER NOTE: pyramiding under DC 8045 is outside the scope of the current HLR for earlier effective date for migraine." Could be a clue...

Isn't a 0% rating for tinnitus awarded if it's infrequent? I'm curious what the minimum frequency of tinnitus episodes is for a 10% rating. Weekly, bi-weekly, everyday?

Any updates? I had my VES exam 30 days ago and the RO hasn't received the report yet.

How did you service connect cubital tunnel syndrome? I have the same condition (numbness, splints to keep my arms straight at night, etc).

Great advice. I also just recently started Leviathan Wakes.

I had my VES c&p exam 3 weeks ago and it hasn't been received yet by VA

I hear you. As it stands, I'm saving CUE as my last possible resort. And I'd go with an attorney if/when it comes down to that. I attached a copy of the C&P exam in question. Pre-discharge va exams_Redacted.pdf

I was clearly diagnosed with migraine headaches in service (346.90), that paperwork is in my C-File, and they had it in their possession at the time of my claim for migraines. Thanks for the link. Very interesting article. A doctor wrote an opinion that agrees with the TBI-OSA connection (see attached). Is the 2008 C&P exam considered "new" evidence for a supplemental claim? redacted imo_Redacted.pdf

Thanks for the reply! The cognitive and fine motor speed impairment alone I think would warrant the TBI residuals 10% rating to avoid the pyramiding with a migraine rating.

The issue: I’m on the verge of filing a large VA claim to include migraines, erectile dysfunction, obstructive sleep apnea, and a few other conditions. However, I think I may be eligible for an earlier effective date going back to 2008 for the migraines and ED. I’m hesitant to file for the migraines and ED in this claim because I do not want it to nullify my chance at an earlier effective date. Background (long read, sorry!): After reviewing my C-File, I'm pretty sure VA underrated and possibly clearly and unmistakably erred (CUE) 11 years ago in their decision based on the detailed evidence from their c&p examination. Essentially, the VA decision said that I don't have prostrating migraines because I don't have emergency room or sick call visits. They conceded I have cognition issues from all the concussions and awarded 10% for: “traumatic brain injury with post concussive syndrome (also claimed as migraine headaches)” This was despite having an in service migraine diagnosis (which was in their possession at the time and in my C-File) and the fact that their C&P examiner said that I have “prostrating migraines 4x per week”. Unless I’m mistaken, if the VA had in their possession evidence that would warrant a higher rating of the migraines at time of the decision 11 years ago, they violated 38 CFR 4.6. Additionally, while I did not claim erectile dysfunction, I think this may have been an “inferred claim” seeing as the c&p examiner noted: “Q22. Sexual functioning? A22. Yes, problems with achieving and maintaining erection. The veteran has started to use Levitra, which helps. He mentions he has been taking Celexa, had been discontinued, and has less of sex.” “DIAGNOSIS: Traumatic brain injury with post concussion syndrome and migraine headaches, and erectile dysfunction (with etiology as least as likely as not related to the TBI).” I've heard that the VA stopped honoring claims to re-open so I'm unsure as to the best way to proceed for establishing an earlier effective date for a migraine rating. I also suspect that it's too late for them to honor the special TBI re-processing rules if the exam was not conducted by a neurologist (he was an internal medicine MD). Finally, just to re-iterate, I’m hesitant to file a claim for migraines and ed in this new claim because I don’t want to possibly lose my earlier effective date by doing so. My tentative plan is to include them in the new claim anyway and in a statement ask that the “TBI with PCS (also claimed as migraine headaches) be split into “8045 TBI residuals” and “8100 Migraines” with each condition being rated separately. Then after the decision is rendered, file a supplemental claim with the 2008 c&p exam notes appealing for an effective date to 8/31/2008. If that fails, that’s when I would look toward filing for a CUE. Does this sound like a solid plan of attack?

I appreciate everyone chiming in. Would the C&P examiner's notes be considered new and relevant evidence? It's new to me having looked at my C-File for the first time. But I'm guessing that doesn't it qualify as "new" for a supplemental claim. It's sounds like more of a CUE claim but I'm saving that one for last resort. I'd also let an attorney handle the CUE if it came down to that.

After finally getting my C-File, I'm pretty sure VA underrated me 11 years ago based on the detailed evidence from their c&p examination. Essentially, the VA decision said that I don't have prostrating migraines because I don't have emergency room or sick call visits for them. They conceded I'm a bit messed up from all the concussions and awarded 10% for "TBI to include migraines" despite having an in service migraine diagnosis with lots of follow up treatment and medications while still in service and to this day. Plus, the fact I that I just found out from the C-File that their C&P examiner said that I have prostrating migraines 4x per week with detailed notes about what they do to me. I just heard that the VA stopped honoring claims to reopen so I'm unsure as to the best way to proceed for establishing an earlier effective date for a migraine rating. I also suspect that it's too late for them to honor the special TBI re-processing rules if the exam was not conducted by a neurologist (it was an internal medicine doctor).

Thanks everyone. I'm going to file all the claims at once. I've already got an intent to file from December so I'll be good to go to prepare everything needed.