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Joyce Pinckney

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Posts posted by Joyce Pinckney

    Retro pay back to 2005, and remand question

    in VA Disability Claims Research

    Posted

    On 11/5/2018 at 6:32 PM, doc25 said: 
    
Depending on the severity of your migraines they can be rated from 0% to 50%. Here is an appeals case that was favorable for a veteran with migraines. Read through it and see if you meet the requirements for the appropriate rating provided in the case.
The longer the VA takes, the more money they are ;required by law; to compensate you in retro pay. So be patient.(I know it's easier said than done, I've been there too.)



Citation Nr: 1631068    
Decision Date: 08/04/16    Archive Date: 08/11/16

DOCKET NO.  10-44 146A    )    DATE
    )
    )

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to disability ratings for migraine headaches higher than 30 percent prior to September 3, 2015, and 50 percent from September 3, 2015, forward.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC).


REPRESENTATION

Appellant represented by:    The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran had active service from May 1993 to September 1995.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Oakland, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a March 2007 rating decision, the RO continued a 30 percent disability rating for migraine headaches.

In May 2015, the Board remanded the case to the RO for the development of additional evidence. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record in the increased rating claim. In a September 2015 VA medical examination, the examiner found that the effects of medications for the Veteran's migraine headaches and the frequency of migraines made her unable to work.  That finding raises a TDIU claim.  In a May 2016 informal hearing presentation, the Veteran's representative also raised the issue of entitlement to special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  The Board therefore has added these claims to the issues on appeal.

The issues of a TDIU and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

Prior to September 3, 2015, the Veteran had prostrating migraine attacks that were so frequent and persistent as to produce severe economic inadaptability. 


CONCLUSION OF LAW

Prior to September 3, 2015, the Veteran's migraine headaches met the criteria for a 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2., 2.7, 4.10, 4.124a, Diagnostic Code 8100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In July 2006, the Veteran submitted a claim for a disability rating higher than the existing 30 percent rating for her service-connected migraine headaches. In a March 2007 rating decision, the RO continued the 30 percent rating. The Veteran appealed that decision. In a September 2015 rating decision, the RO increased the rating for migraine headaches to 50 percent, effective September 3, 2015. The Veteran continued her appeal. She contends that impairment resulting from her migraines warrants ratings higher than 30 percent before September 3, 2015, and 50 percent from September 3, 2015.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The rating schedule provides criteria for evaluating migraine as follows:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
   ........................................................... 50 percent

With characteristic prostrating attacks occurring on an average once a month over last several months  .... 30 percent

With characteristic prostrating attacks averaging one in 2 months over last several months  ................... 10 percent

With less frequent attacks  .............................. 0 percent

38 C.F.R. § 4.124a, Diagnostic Code 8100.

Turning to the evidence, in private treatment in July and September 2006, ongoing chronic migraine was noted. The Veteran's headaches were described as infrequent, and sometimes lasting two days.

On VA examination in October 2006, the Veteran reported that during migraine attacks she had to stay in bed and was unable to do anything. She stated that the attacks lasted three days, and occurred on average eight times per month.

In an October 2006 statement, the Veteran wrote that in 2005 her headaches lasted one to three days and occurred ten to fifteen times per month. She stated that during headaches she stayed inside her house. She asserted that her headaches made her unable to function, and made employment out of the question. She indicated that more recently she had experienced five to eight headaches per month. She reported that she had lost her driver's license and did not work.

In private treatment in January 2007, the Veteran reported having migraines about eight days a month, with about five of those severe and disabling.  In private treatment in May 2007, the Veteran reported having about six migraines per month. 

In June 2007, the Veteran's husband wrote that the Veteran had five to eight migraines a month, many requiring eighteen to twenty hours in bed in dark and quiet conditions. Two of the Veteran's daughters wrote that the Veteran had headaches many times per week, and had to spend a great deal of time lying down.

In private treatment in December 2007 and April 2008, the Veteran reported having headaches about every ten days. In July 2008, she reported intermittent migraine headaches. In September 2008, she reported a severe headache that lasted three to four days. In ongoing treatment of the Veteran for migraines in 2010, the treating physician adjusted medications. In June 2010, the Veteran reported having very severe headaches five to eight times a month.

In a November 2010 statement, the Veteran wrote that the severity, frequency, and duration of her headaches caused an economic burden.

In private treatment in January 2011, the Veteran reported headaches that lasted one to three days and occurred at least fifteen times per month. In February 2011, her headaches were described as chronic and daily. In July 2011, she was seen during a headache that had been present for three days. In August 2012, she reported headaches that required lying down up to three times per week. 

On VA examination in July 2013, the Veteran reported having headaches that lasted two to three days and occurred about fifteen times a month.

In private treatment in September 2013, the Veteran reported having had fourteen headaches in the preceding month.

In April 2014, a physician indicated that, because of the Veteran's migraines, work as a postal carrier would put her at high risk of vision loss. In private treatment in July 2014, the Veteran reported no change in her headaches.

In a July 2014 statement, the Veteran wrote that she had headaches that lasted one to three days and occurred at least fifteen times per month. She stated that during headaches she had to stay still in a dark and quiet place. She stated that she could not look at a computer screen for more than fifteen minutes at a time. She reported that she was released from her last job because of her limitations due to headaches. She asserted that those limitations would prevent her from securing employment.


On VA examination in September 2015, the Veteran reported having migraine headaches nearly every other day. She indicated that the head pain typically lasted less than one day. The examiner found that the Veteran had very prostrating and prolonged migraine attacks productive of severe economic inadaptability. The examiner stated that the Veteran was unable to work due to the extent of medications as well as the frequency of migraine attacks.

In a June 2016 statement, the Veteran wrote that she had no less than 12 to 15 headaches a month that were intense and kept her at home and in her room.  

In private treatment in 2015 and 2016, the Veteran reported ongoing migraines with no significant changes in intensity and severity.  Pertinent diagnoses included chronic migraine without aura, intractable, with status migrainosus.

The Veteran's statements and medical records indicate that she had migraine attacks that were prostrating, prolonged, much more frequent than once a month, and so frequent and persistent as to produce severe economic inadaptability. Accordingly, the manifestations and effects of her migraine headaches met the criteria for a 50 percent rating. The Board therefore grants a 50 percent rating prior to September 3, 2015.  A 50 percent rating is the maximum rating available under DC 8100.  Accordingly, the claim has been granted in full.


ORDER

Entitlement to a 50 percent disability rating for migraine headaches for the appellate period prior to September 3, 2015, is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.


REMAND

Unfortunately, a remand is also required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration.  Appropriate development should be completed, as set forth below.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a VCAA letter concerning the issues of entitlement to a total disability rating based on individual unemployability and entitlement to special monthly compensation.  She should be provided with and asked to complete and return a VA Form 21-8940.  She should also be asked to clarify her contentions concerning the claim for special monthly compensation.  

2.  Obtain the Veteran's updated VA treatment records.

3.  Next, schedule the Veteran for an appropriate VA examinations to evaluate the issues of entitlement to a TDIU and SMC.  

4.  Finally, readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC).  A reasonable period of time should be allowed for response before the appeal is returned to the Board.  

The Board intimates no opinion as to the ultimate outcome of the remanded matter. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

    I read this case. I am currently rated at 30% for migraines on eBennies (just notified of the claim closed) and my situation is the same. Except, I get Botox every three months (copay $300) and a monthly injection (copay $5) sent to me that I must administer.  I don't know why I'm 30%.  Maybe, I need to send the VA more documentation.  What else can I do to increase my rating to TDIU?

    Back pay

    in VA Disability Claims Research

    Posted

    3 hours ago, brokensoldier244th said:

    keep an eye on your primary account that you have listed. It will just show up, probably within a week or so (depending on the amount- some amounts over X require more VA signatures to approve). You may want to notify your bank, too. Mine is really weird with me because I used to do a lot of things on paypal and in 1 year I had to change debit cards 2 times and accounts 1 time- so I don't use PP anymore. My bank scrutinizes incoming deposits on my account and will hold them if they are from a strange place, amount, or not when my usual deposit posts. Im glad for the scrutiny, but its a pain to buy groceries if they lock my account for some random incoming deposit until I verify it with them so I usually tell them ahead of time. 

    I will talk with my bank. I think it will take longer. My back pay is over $25k.

    Back pay

    in VA Disability Claims Research

    Posted · Edited by Joyce Pinckney

    8 hours ago, Bluntly said:

    In my last case when my claim closed, i recieved a deposit 3 business days later. If this is the case with u then I'll guess Wednesday u should receive that deposit. With that being said each case is different.

     Thanks. It would be great if that happens.

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