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Migraine Headache Claim


renee

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Hi Berta,

I see you're signed on. Maybe you can assist me with my inquiry.

Regarding my migraine headaches and the effective date. I wrote to the regional office to obtain a copy of my original C&P physical conducted in October 1996. To no surprise (to me) the notation from the physician clearly indicates "veteran has history of migraine headaches and received treatment in the military". The VA never assisted my in substaniated my claim during any of the previous claims until 2004 at which time they scheduled a QTC examination which states "the veterans migraines headaches more likely than not occured in the military service". Since I'm trying to win an earlier effective date should I file a NOD for the VA's failure to assist correct during 1996 thru 2005? I finally received service connection for my migraines last year. Or should I file a CUE claim?

Any information any one has would be appreciated.

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The only way I know of that you could try to get an EED granted back to 1996

is by filing a CUE claim. Many Rules to study on CUE. Many reasons to deny CUE,

there are some to rules and regs. that can grant a CUE

Failure of VA's Duty to assist - is NOT APPLICABLE to CUE.

Here's some info. for you to study, hope you appreciate this because what Im

listing for you here in just 2 minutes took me about 3 years to learn and compile.

Good luck and all of this is as always, only my opinion.

carlie

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.57.49&idno=38

Here are some EED CUE cases for you to study.

http://www.va.gov/vetapp05/files1/0503033.txt

http://www.va.gov/vetapp03/files/0321596.txt

http://www.va.gov/vetapp95/files4/9517775.txt

I suggest going to BVA and COVA appeals to study and also study CUE's that are denied so you can learn how NOT to file for CUE.

Only my opinion.

Edited by carlie
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Guest jstacy

Renee, I wuld handle this in 2 ways. First the VA violated the regulation for not accepting a C @ P examiners report and did not produce any negative evidence. Use that for the NOD. Attach a copy of the denial letter ( Highlight the area) and attach the C and P ( Copy Only).

2: ASK for an earler effective date.

3.Investigate and write up a good CUE claim based ont he fact that the VA violated the title 38 for not granting service connection from the Original C @ P exam. ( Attach the medical evidence)

#3 may need to be the last resort, Yopur going to get this but you may get it a little at a time because the game is being played and your still young.

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Renne- I agree with Carlie as to the CUE claim-

It is the only way a claim, that has been denied and never appealed, can produce more retro-

I assume the other claim was denied and never appealed but then you re-opened.

Carlie is right- it takes studying CUE claims to understand their specifics-

In the denied 1996 decision did they account for the docs C & P statement in the old C & P at all?

Did they deny saying that claim was not "well grounded" ?

Did you have a migraine disability documented at that time?

The examples of CUE that Carlie gave you show you what VA needs- proof that a legal error in a past decision caused you loss of benefits.

Did they put a diagnostic code with a NSC rating for migraines on the rating sheet with that past decision?

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  • In Memoriam

Michelle --

The way to get at the EED issue depends on the date s/c was granted and the effective date was assigned. If the rating decision was less than a year ago, it i snot closed and you can address this question only through a NOD. If it were more than a year ago, file for CUE.

Irrespective of the means of how you bring this to the attention of VA adjudicators, the standard for review wil be the same -- that is CUE. And you are going to have a tough time claiming an EED on the basis of medical recors, since the weight an adjudicator places on a medical record can never be CUE.

Alex

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Is it true that the weight assigned to a medical record is not the same as totally ignoring that the record exists?

sledge

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Michelle --

The way to get at the EED issue depends on the date s/c was granted and the effective date was assigned. If the rating decision was less than a year ago, it i snot closed and you can address this question only through a NOD. If it were more than a year ago, file for CUE.

Irrespective of the means of how you bring this to the attention of VA adjudicators, the standard for review wil be the same -- that is CUE. And you are going to have a tough time claiming an EED on the basis of medical recors, since the weight an adjudicator places on a medical record can never be CUE.

Alex

Thanks everyone for your input. Where would I find the code on the original denied claim?

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Renee,

Here's my question on the CUE issue. Did you really RE-OPEN that migraine claim ?

Was there NEW & MATERIAL Evidence provided ? When I study

38 CFR -- 3,156 -- New and material evidence.

(a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(:mellow: New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim.

Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

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Renee,

Here's my question on the CUE issue. Did you really RE-OPEN that migraine claim ?

Was there NEW & MATERIAL Evidence provided ? When I study

38 CFR -- 3,156 -- New and material evidence.

(a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(:mellow: New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim.

Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

Carlie,

Thanks for your response. The only thing issued new was a nexxus statement from my neurologist. However, the claim that was approved states that it was approved based on "previous claims filed, denials and veterans medical records". My concern is that the information was always there. Why was it not taken into to consideration the first three times I filed? Why was a nexxus statement required for a disability that's well recorded in my c-file, diagnosed in the military and supported by physicians in the military as well as the C&P examiner?

Renee

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Guest jstacy

Renee, What did the original denial letter state as to the reason it was denied?

If it stated that the service record were negative for Migraine headaches and a later C and P examination found it in the record, Then you have got them. Totally ignoring evidence and stating that it is not there is in violation. If the evidence is in the record at the time of consideration it must be connsidered. That is the basis for CUE. The same thing happened to me in 1998 and they VA is just now in the process of repairing the damage.

Let me remind you. Be dilligent when dealing with these people. State the regulations they did break and how they broke them.

Good luck.

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Jstacy,

Again thanks for your feedback. I will quote directly from the rating decisions received as follows:

1/23/97: "Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for migraine headaches is denied since this condition neither occurred in nor was caused by service. The veteran was assessed with a diagnosis of atypical migranes in July 1992. On the Va examination the examiner diagnoses migraine headaches apparently based on the history supplied by the veteran. The veteran currently controls the headaches with Motrin."

05/27/2003 :"Service conneciton was previously denied for migraine headaches, as this condition was not shown to be incurred in, or aggravated by, your military service. The evidence submitted in connection with the current claim. to include your treatment records from VA Medical Center, shows that you were seen for complaint of headache from April 1997-June 2001. During a follow-up evaluation performed in June 2001, you were diagnosed to have chronic tension headaches. Subsequently, in April 2001, the records show an assessment of migraine headaches, and in October 2002, the records show a diagnosis of migraines. Although current evidence shows a diagnosis of migraine headaches, the evidence of record does not establish that this condition was incurred in, or aggravated by, your military service period. Therefore, the deinial of service connection for this condition is confirmed and continued."

Service connection granted

07/10/2005: "Based on additional evidence received following our May 20, 2003 rating decision we have granted service connection for your migraine headaches."

Service connection granted based on evidence received from my medical records from Va Medical Center for the period of April 1997 thru March 2005, QTC examination February 2004 and review of veterans VA claims file and past adjudicative actions.

"Based on the veterans history". I'm not a health professional therefore I cannot impart medical opinions of any kind to any physician. The C&P examiner however, is a qualified physician and has the ability to arrive at his/her own medical conclusion after proper assesment. Why did they wait 7 years later to request a QTC examination? There was no duty to assist in obtaining supportive assesment that would support my initial claim. What regulations do I quote to them, reinforcing their own regulations?

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Berta,

I was able to locate the NSC diagnostic code on the original denial letter. It is 8100. I presume you know the meaning of such codes. Can you enlighten me?

Renee

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Renee-this rating code is exlained in this BVA decision:

What is significant in this decision is that the maximum rating for 8100 is 50% but the

BVA granted Total Disability due to Unemployability :

http://www.va.gov/vetapp02/files02/0209728.txt

I agree with what Alex and JStacy said-and it appears that your SMRs show migraine treatment but they did not acknowledge this at the VARO for years-

If the initial denial decision has never been appealed- I would study some CUE claims and see if you can shape your situation into a CUE claim.

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Thanks Berta,

I'm fairly new at doing this. I filed an NOD in April which apparently should have been filed as a cue claim. How can I cite the diagnostic code as basis for CUE?

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Guest jstacy

The VA is trying to use the QTC exam as additional evidence not paying any attention to the evidence listed in the service record.

File the NOD and get this to the next level as the bone heads at the VARO are ignoring the issue. Also file a CUE claim and ask for retro back to your original filing date. Base the CUE on the VA's failure to consider the service record evidence that you were treated for Migrane headaches in service.

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A disagreement with a current rating gets a NOD- and must be filed within one year of the decision being appealed.

You can still file a CUE on a past unappealed decision that contains legal error.

This is an interesting example of what I meant by diagnostic code error:

http://webisys.vetapp.gov/isysquery/irl30bf/1/doc

Myler V. Derwinski

"On the basis of the foregoing discussion, the Court will thus reverse as clearly erroneous the BVA's factual finding that the wound was a through-and-through wound only of the skin"

The proper DC and therefore proper rating code had not been applied. This constituted a legal error.

As Carlie said it takes studying and studying CUE claims to understand them.

They have a specific criteria and the claim has to state the legal error committed.

I always use my present CUE as example.

The veteran, my husband, was 100% SC PTSD and 100% Sec 1151-with 1151 disabilites independent of the PTSD.(strokes, heart disease, DMII never diagnosed or treated by the VA)

The VA never addressed the issue of SMC in an accrued award that came 3 years after he died. VA case law, five BVA decisions, and a General Counsel Opinion ,reveals that Section 1151 disabilities meeting the SMC criteria mean the veteran gets SMC-pluc their own regs in 38 USC 1114 (I sent this all with my claim) The VA failed to determine SMC in his accrued benefits.They never mentioned it.

My vet rep at the time did, but he never mentioned CUE- I didnt question it until the VA itself (counsel)a few years ago found CUE in a decision that I had already been denied a CUE on.

Seeing how I had been correct on that CUE all along- I filed this one- and supported it with evidence- VA case law-and regs. The only medical inference is to the NCS ratings of these Sec 1151 disabilties. No med recs went with the claim. The focus of CUE is solely on VA legal error in a past decision.

Then when I questioned VA by saying this was still an open claim, they stated twice that he was not eligible

under any circumstance for SMC. I got the blue rating decision and found that he had been denied SMC consideration. I had never seen this decision until 2004.

I then CUed them on the whole thing.

My point here is- Cues involve different scenarios and they always involve legal errors in the adjudication of medical disabilities.

I have posted CUE claims and other CUE info at hadit in the past, and it can be searched for.

The best bet is to search CUES at the CAVC and the BVA to see how a CUE claim must be shaped.

PS- I recently found that in Look V Derwinski the VA "prejudiced the veteran's substantive rights" in a Sec 1151 issue

and thereby committed CUE.

I am still working on my CUE claim -even as they are- and will use this if needed as it was the Sec 1151 issue (he had filed the initial Sec 1151 that I re-opened) that prejudiced my husband's substantive rights in his proper 100% SC award -(took 6 years in spite of bonafide medical evidence),and the proper accrued benefits under Sec 1151 and his SMC eligibility.

CUES are not easy but as I stated above- here I had a bonafide CUE, it was denied at VARO and I think at BVA and then Regional COunsel saw it when I re-opened my claim and immediately VA put the check in the mail.

Edited by Berta
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