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By S. Bruce
I was awarded 30% service connected for sleep apnea when I left the military in 2008. In 2013, I was directed to and took another sleep study. It was found and the VA agreed that I needed to start using the CPAP. VA reviewed the evidence, agreed, paid for and I have been using the CPAP since 2013. In Sep 2019, during a review of my records, my representative informed me that using the CPAP meant that my SA rating should be 50% versus 30%. I filed an increase claim and was increased to 50% with an effective date of Sep 2019. Shouldn't the effective date be April 2013 when the diagnosis was received and approved? I checked and the 50% rating for using a CPAP was in place in 2013. I wasn't aware of the rating difference at that time, so I didn't file a claim at that time. I'm asking because I'm thinking I may be due some back pay...……….
Several discussions about ITFs under the AMA process have cropped up in other forums. Today in talking about one it dawned on me I could find out a few things by simply starting to file under the AMA process.
In short what I found is that ITF's do indeed exist under the AMA process for New Claims. The process also recognizes automatically if you have an existing ITF from before Feb 19, 2019.
Attached are 5 screen caps on the process. Caps 1 and 5 related to filing a New Claim. The other 3 show what your options are depending on the date of the decision you are appealing.
Read the fine print on Cap 5 concerning previous ITF's.
Will this change? who knows, but as of now the application process under AMA for a New Claim indicates that ITF's are alive and breathing on their own.
Another question about the AMA process.
In 2018 I filed for SMC for ED. I was awarded 0% but SMC allowed. yippee.
At that time the Award letter said I had a potential claim for Voiding Dysfunction if I choose to file for it.
Since my other claims were tied up on the VA hamster wheel, I filed an Intent to File.
AS I understand it since Feb 19 that Intent to File is gone? and my earlier date is done, meaning when I file for the Voiding Dysfunction my file date will be the earliest possible under the new AMA process?
Is there a way around this to get an EED back to 2018?
Does claiming a new condition void possible entitlement to an earlier effective date? The new condition (migraines) isn't actually new because it was combined into one 10% rating for TBI to include migraine headaches.By chibears3531
I’m on the verge of filing a large VA claim to include migraines, erectile dysfunction, obstructive sleep apnea, and a few other conditions.
However, I think I may be eligible for an earlier effective date going back to 2008 for the migraines and ED. I’m hesitant to file for the migraines and ED in this claim because I do not want it to nullify my chance at an earlier effective date.
Background (long read, sorry!):
After reviewing my C-File, I'm pretty sure VA underrated and possibly clearly and unmistakably erred (CUE) 11 years ago in their decision based on the detailed evidence from their c&p examination.
Essentially, the VA decision said that I don't have prostrating migraines because I don't have emergency room or sick call visits. They conceded I have cognition issues from all the concussions and awarded 10% for:
“traumatic brain injury with post concussive syndrome (also claimed as migraine headaches)”
This was despite having an in service migraine diagnosis (which was in their possession at the time and in my C-File) and the fact that their C&P examiner said that I have “prostrating migraines 4x per week”.
Unless I’m mistaken, if the VA had in their possession evidence that would warrant a higher rating of the migraines at time of the decision 11 years ago, they violated 38 CFR 4.6.
Additionally, while I did not claim erectile dysfunction, I think this may have been an “inferred claim” seeing as the c&p examiner noted:
“Q22. Sexual functioning?
A22. Yes, problems with achieving and maintaining erection. The veteran has started to use Levitra, which helps. He mentions he has been taking Celexa, had been discontinued, and has less of sex.”
“DIAGNOSIS: Traumatic brain injury with post concussion syndrome and migraine headaches, and erectile dysfunction (with etiology as least as likely as not related to the TBI).”
I've heard that the VA stopped honoring claims to re-open so I'm unsure as to the best way to proceed for establishing an earlier effective date for a migraine rating. I also suspect that it's too late for them to honor the special TBI re-processing rules if the exam was not conducted by a neurologist (he was an internal medicine MD).
Finally, just to re-iterate, I’m hesitant to file a claim for migraines and ed in this new claim because I don’t want to possibly lose my earlier effective date by doing so. My tentative plan is to include them in the new claim anyway and in a statement ask that the “TBI with PCS (also claimed as migraine headaches) be split into “8045 TBI residuals” and “8100 Migraines” with each condition being rated separately.
Then after the decision is rendered, file a supplemental claim with the 2008 c&p exam notes appealing for an effective date to 8/31/2008. If that fails, that’s when I would look toward filing for a CUE.
Does this sound like a solid plan of attack?
So I started my "Fully Developed Claim" 02/08/2019 had my VA Comp and Pen Exam 03/18/2019 . My original completion date was 08/05/2019. Then after my Exam 05/03/2019.
This is my story I've injured both knees, both feet and back while serving In the Army in 2017. progressively my back gave out on me. Now I'm young 25 years, can't work and didn't know about my options until just recently. Lucky for me I was within my year of separation so I got a VSO to work with me and my claim. Still waiting if it's an approval or denial, however today Ebenefits updated status from "Pending of Decision" to "Pending Decision Approval. With a new estimated date 04/30/2019. What happens next. Will I know I'm approved before notification in the mail?
Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
Vync posted an answer to a question,I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:
2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis
2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.
"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.
First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date.
If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues.
I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.
It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.
Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.
Does this help?
Buck52 posted an answer to a question,Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.
The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.
Picked By66 bricks,