Form 9 Due - What Should I Say?

[TiredCoastie]

So I've appealed several denied conditions for service connection or the rating received and have been sitting on the SOC in part waiting to see what my second appeal will do and in part dealing with an unrelated ongoing family crisis. Whew.

So this weekend, I've got to get the Form 9 completed and filed.

I think I did a pretty good job describing why the RO's decisions were wrong in my NODs but the SOC shows that they sticking by their determinations. Should I rewrite those descriptions or, seeing as nothing has changed since I filed the last NOD, would it be OK to just copy and paste my rationale into the Form 9 and fire it off? Or would it be beneficial to add more meat quoting BVA decisions?

[TiredCoastie]

Thanks, Carlie!

The grant reads:

The evaluation of atypical migraine headaches is increased to 30 percent disabling effective (date, which was wrong but later CUEd and corrected).

An evanulation of 30 percent is assigned from (same wrong date, now fixed).

We have assigned a 30 percent evaluation for your atypical migraine headaches based on:

• Characteristic prostrating attacks occurring on an average once a month over last several months

A higher evaluation of 50 percent is not warranted unless the evidence shows the condition is very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability.

What I've shown is that I have prostrating attacks on average of between 2 and 3 a month on average. Some months I have not had any. Some months I've been down on five days.

My rationale for the Form 9 reads like this now:

My atypical migraine headaches should have been rated at 50%, not 30%. A review of the all the evidence provided including the two VA Forms 21-0960C-8 from Dr. (X) should have resulted in 50% rating. The information she provided, my other medical records, as well as my headache logs show that I have very frequent prostrating attacks. Dr. (X) specifically indicated that I was having severe economic impacts by stating that I cannot work while having a severe migraine. Considering that I have up to 5 days a month in which I am incapacitated and must nap in a quiet, dark room, the evidence shows I meet the 50% disability criteria specified by 38 CFR §4.124a.

While I may be incapacitated for up to five days a month, I am mentally challenged many more days, especially in the afternoons. Please see my extensive headache log printed from MyHeatheVet. I have changed my employment search as a result, looking for part-time work that would be more flexible around my condition. I have not been very successful.

I have not been able to find adequate relief of this condition to improve it very much with little prospect of improvement. My medications for this conditions include a butterbur root extract herbal medication along with metoprolol tartrate (25 mg twice daily) to address arterial spasming associated with migraine and 200 mg of magnesium citrate. My rescue medications are Tylenol, 162mg of aspirin, and 200 mg more magnesium citrate. I have tried a variety of preventative and rescue medications in the past without a lot of success, and my neurologist, Dr. (X), is fairly comfortable with this approach.

This rating decision has also been appealed through my Notice of Disagreement on the subsequent claim decided on (date), with the NOD received on (date).

Don't know if this will carry the day or not, but would greatly appreciate any additional approaches you think I could throw in there.

[carlie]

Thanks, Carlie!

The grant reads:

The evaluation of atypical migraine headaches is increased to 30 percent disabling effective (date, which was wrong but later CUEd and corrected).

An evanulation of 30 percent is assigned from (same wrong date, now fixed).

We have assigned a 30 percent evaluation for your atypical migraine headaches based on:

• Characteristic prostrating attacks occurring on an average once a month over last several months

A higher evaluation of 50 percent is not warranted unless the evidence shows the condition is very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability.

What I've shown is that I have prostrating attacks on average of between 2 and 3 a month on average. Some months I have not had any. Some months I've been down on five days.

My rationale for the Form 9 reads like this now:

My atypical migraine headaches should have been rated at 50%, not 30%. A review of the all the evidence provided including the two VA Forms 21-0960C-8 from Dr. (X) should have resulted in 50% rating. The information she provided, my other medical records, as well as my headache logs show that I have very frequent prostrating attacks. Dr. (X) specifically indicated that I was having severe economic impacts by stating that I cannot work while having a severe migraine. Considering that I have up to 5 days a month in which I am incapacitated and must nap in a quiet, dark room, the evidence shows I meet the 50% disability criteria specified by 38 CFR §4.124a.

While I may be incapacitated for up to five days a month, I am mentally challenged many more days, especially in the afternoons. Please see my extensive headache log printed from MyHeatheVet. I have changed my employment search as a result, looking for part-time work that would be more flexible around my condition. I have not been very successful.

Are you currently employed ?

If yes, do you have evidence of having to take time off from work due to migraines ?

Unless this doctor has seen evidence of time off from work due to migraines - I do not know

if the VBA will accept their statement to be credible and probative.

I think the headache journals are a good thing to provide and any evidence of missing work.

I have not been able to find adequate relief of this condition to improve it very much with little prospect of improvement. My medications for this conditions include a butterbur root extract herbal medication along with metoprolol tartrate (25 mg twice daily) to address arterial spasming associated with migraine and 200 mg of magnesium citrate. My rescue medications are Tylenol, 162mg of aspirin, and 200 mg more magnesium citrate. I have tried a variety of preventative and rescue medications in the past without a lot of success, and my neurologist, Dr. (X), is fairly comfortable with this approach.

The VBA isn't going to give a rat's behind or any weight to the paragraph above, this is just words

to muddy up your waters and personally, I would not submit that paragraph.

Now something that could help your claim - medication wise IMO is, medication you might be taking for treatment

of your migraines, that have side effects like, confusion, drowsiness, etc . . .

Those side effects can impact employment, driving, operating certain equipment, etc . . .

jmho

This rating decision has also been appealed through my Notice of Disagreement on the subsequent claim decided on (date), with the NOD received on (date).

Don't know if this will carry the day or not, but would greatly appreciate any additional approaches you think I could throw in there.

[TiredCoastie]

Roger on all, Carlie! Thanks!

I think my chances of increasing the disability rating to 50% is lower than 50%, but it costs nothing to try and everything to throw in the towel.

[TiredCoastie]

Thanks again, everyone! Form 9 filed today via fax and certified mail (automated mail machine helped me). I beat the deadline again, by God's grace. Hopefully within a few years there will be a result worth celebrating.