Now that Claim to Reopen doesn't exist, should I file a supplemental claim, a legacy NOD, or a CUE?

[chibears3531]

After finally getting my C-File, I'm pretty sure VA underrated me 11 years ago 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 for them. They conceded I'm a bit messed up from all the concussions and awarded 10% for "TBI to include migraines" despite having an in service migraine diagnosis with lots of follow up treatment and medications while still in service and to this day. 

 

Plus, the fact I that I just found out from the C-File that their C&P examiner said that I have prostrating migraines 4x per week with detailed notes about what they do to me.

 

I just heard that the VA stopped honoring claims to reopen 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 (it was an internal medicine doctor).

Edited April 12, 2019 by chibears3531

[ShrekTheTank]

Never give up.  Even if your chance is low I would still try to fight it. 

I would think if there is a CUE you might have a chance.  

Try reaching out to a lawyer I am sure they can give you the best advice on what you can do and your chances. 

[broncovet]

I think you heard wrong.  38 CFR 3.156 has not been eliminated from VA regulations.  

Quote

 3.156 New and material evidence.

(a)General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

 

 

This said, its always been that VA processes your claims "that VA decides they WANT to process", and trashes the others.  

Im hoping Alex or others can post something on "PRYING OPEN" a claim that VA doesnt WANT to reopen.  ONE WAY to "pry open" a claim the VA stubbornly refuses to adjuticate is by:

FILING A WRIT OF MANDAMUS to compel the VA comply with 38 CFR 3.103.  

 

 

Its nothing new that VA complies with its own regulations to the extent they want to, and no more.  

[broncovet]

VA is eliminating the term "material" evidence and replacing it with "relevant" evidence.  It may be possible to find 38 CFR 3.156 replacing the term "material" with relevant.  

This is actually a liberalization of regulations.  

HOWEVER, if you opt into RAMP with "Higher level Review", you agree you have "no new evidence" so you give up your rights to submitting new evidence.  DONT DO THAT.  OPT for "Supplemental Claim Lane", and not HLR. 

[Buck52]

I believe if the Veteran is within his appellate rights  or within his appeal time limits   he can submit New & Materiel evidence .

The VA is calling New & Materiel Evidence ''Revelent'' evidence now days...but if a veteran is within his appeal rights  it don't matter what type of evidence you call it as long as it is substantial  evidence of merit.

[broncovet]

Buck, this is incorrect IF the Veteran opts for "higher level review".  In HLR, the Veteran, by opting into this level, says he "has no new evidence", so it cant be submitted.  

Read Alex's post, which is similar to my opinion(s).  Alex states:

Quote

Now for the insanity. You put in three claims. Each one can have a certain path depending on denial or a desire for a higher increase. The problem is elementary. How do you present or provide evidence for a higher evaluation for a HLR? You can’t. You cannot submit squat in a higher level of review. 

Source:  https://asknod.org/2019/04/12/the-new-appeals-modernization-act-and-more/

Im not trying to be critical, Buck, but I do think its important we give Vets the correct information.  Thus, dont submit new evidence with a HLR.

[Buck52]

Yes I understand BUT   I was not referring to the HLR

but the 

As the evidence presented it don't matter what its called if they have the appeal rights (sent in a timely manner or within the appeal limit  it don't matter what the evidence is called  "relevant"  or New and Material E  as long as the evidence as merrit. Although the VA is starting to call evidence ''Relevant''

as Alex ''quoted''

 personally think the kicker is that you can  make a u turn after the BVA loss and begin anew at the SCL with more evidence and keep you filing date. As usual, we’re going to learn by error. 

your correct  the veteran can't send in more  new evidence if he opts to the HLR  in the Ramp program