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.

[renee]

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?

[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.

[Berta]

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 May 29, 2006 by Berta