What Next

[Scott D]

I kind of got myself into a little jam. I need advice on what to do next.

I had a decision in 2005 where I was rated 0% for migraines. Information that the decision was based on was incorrect. The QTC group reporting the C&P stated incorrectly 3-4 per year instead on 3-4 per month. After an appeal the rating was increased to 10%, which I believe to be in error, an additional appeal was made that requested the whole slew of symptoms to be considered prostrating in nature and thus be rated 30%. An IMO stated that the attacks are prostrating in nature.

The decision came back denied in early 2007. I then filed a form 9 looking to take this to the BVA. After waiting awhile for information I called my VSO who stated if I had not heard anything, the process was still in the works. He confirmed this on multiple occasions.

Today I called the VA looking for a status and they state a form 9 was never filed, and the decision is now closed. I have passed the deadline for appeals.

What can be done?

I hope my information makes sense. I still do not have a complete grasp of the terms and conditions that go along with the VA appeals process.

Edited January 12, 2009 by Scott D

[stillhere]

Scott, Do you have a copy of the form 9? I hope you do. Also did you send in the appeals with signature reguired mail again I hope so.

Good luck

[JR Reihs]

Other than a CUE claim your EED is most likely gone from what you have posted. I would get all over the VSO for this not being followed up on and see if he could get it corrected.

[Scott D]

Negative on the required signature mail. Take me as another lesson learned on why this is important.

I have to scour records at home. Im afraid that due to a move in between it may not be easy to locate the form.

Can I submit recent medical records and reopen based on new evidence?

Edited January 12, 2009 by Scott D

[jbasser]

Immediatly file a cue claim based on the VA improperly applying the regs per the Migraine criteria. 3 or more per month and prostrating is a 30 percent rating and a 50 percent rating is productive of a severe economic impairment.

This is your only route.

J

Edited January 12, 2009 by jbasser

[Ricky]

Negative on the required signature mail. Take me as another lesson learned on why this is important.

I have to scour records at home. Im afraid that due to a move in between it may not be easy to locate the form.

Can I submit recent medical records and reopen based on new evidence?

Yes you can. If attempting to force the SO to fix this problem then your only option is to reopen. I do not see a cue since the medical report was what caused the 10 percent rating.

[jbasser]

He could say that he submitted it and that it may have been spoliated.. and he would like to use t he VA directive as means to keep his claim in open status.

I dont think they can deny it.

Scout, I am impressed.

He still can go after the original Fee Basis C&P exam. If he has a time line in the record or treatment record showing the frequency of headaches andd the exam showed a different frequency yhen the history of record wins. If the VA makes a determination based on false medical information it is still an error as long as the error causes the exact same criteria as the VA cue criteria.

An attorney may be needed but this is a winnable claim.

J