Migraine Headache Claim

[renee]

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.

[carlie]

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 May 24, 2006 by carlie

[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.

[Berta]

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?

[Alex]

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

[SLEDGE]

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

sledge

[renee]

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?