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]

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)

( 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).

[renee]

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)

( 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

[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.

[renee]

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?

[renee]

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

[Berta]

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.