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


chibears3531

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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 by chibears3531 (see edit history)
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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. 

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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.  

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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. 

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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.

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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.

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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

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Yes I understand and your correct about  we can't send in anymore evidence  in the HLR.

  I hope most veteran don/t go that rout.  because more than likely the veteran will need to get a new IMO And sunmit this new evidence they call ravelent.

but I never said a veteran can.,

I was referring to what they  (VA)call ''Revelent'' Evidence

As for as what they  (VA)are calling Revelent  evidence  it don't matter  as long as the evidence has merrit  although the VA is calling  it Revelent  evidence and not new and material evidence  that was my point.and yeah in the lesser review lanes

quote from Alex

' 'My attitude about the HLR Lane is decidedly negative. I’m pretty sure it will be a “What part of ‘no’ don’t you understand, sailor?”'

I agree with that.

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I appreciate everyone chiming in.

Would the C&P examiner's notes be considered new and relevant evidence? It's new to me having looked at my C-File for the first time. But I'm guessing that doesn't it qualify as "new" for a supplemental claim.

It's sounds like more of a CUE claim but I'm saving that one for last resort. I'd also let an attorney handle the CUE if it came down to that.

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chibears3531

If you never opt in the HLR   (Higher Level Review)then yes  you can submit your new relevant evidence. 

Use the SCL

.Looking  into our  C file is an absolutely must  when appealing our claims.

Glad you requested yours.

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Yes, an examiner's notes can be new and relevant evidence.  This assumes, however, the evidence is NEW.  "New" evidence means evidence not previously before the VA.  

As to whether the evidence is "relevent", if this doctor makes opinions about your conditions, then it should be relevent.  A bit about new "material" evidence and new "relevant" evidence:

"Material" evidence suggests the new evidence is "outcome determinative".  Example:  A doctors opinion that your condition is at least as likely as not due to an event in service, is likely "material" as it immediatly affects the outcome.  (By itself, without other evidence).

"Relevant" evidence is a lower standard.  A lower standard means its easier for the Veteran to meet the criteria to reopen with "relevant" evidence than the old "material" evidence.  

The Va previously declined to reopen claims becuase the evidence was not material, that is, outcome determinative.  They said you had new evidence, but that evidence did not change the decision.  

    In other words, the new relevant evidence submitted need not be outcome determinative.  It usually means that this relevant evidence COULD be outcome determinative, but may need some additional evidence.  The term "relevant" evidence is probably too new for the courts to take up and make a defination.  

For more, read VA's take on it. :https://www.va.gov/disability/how-to-file-claim/evidence-needed/

Edited by broncovet (see edit history)
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A note regarding NME (new and material evidence): in general one should determine what purpose the intend to use the NME argument.  Typically, NME is appropriate if a claimant is trying to reopen a denied claim once it has been closed.  A clear and unmistakable error (CUE) argument is appropriate if a claimant wants the VARO to reconsider a given decision within the 1 yr time limit, or at CAVC if you’re appealing a BVA decision.  

 

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Based only on what you stated in the original post I think you may have a valid CUE claim. It appears based on what you stated that the VA ignored evidence about your headaches... also the va was forced to re adjudicate many claims for TBI based on using c/p examiners that had no experience or  medical knowledge to correctly identify TBI residuals. In fact,  based on the fact you were only rated 10%  I am positive that you received a low ball rating.  I had a c/p examination in 2016.. my TBI occurred in 1974,  in 1974 they did not call head injuries TBI's.  Anyway,  I have some damage to the left front lobe, and I have loss of memory when it comes to the injury, I was unconscious for 3 and 1/2 days ... I  have short term memory loss, that is I cannot remember names of people I now meet. I have trouble remembering conversations with my spouse or others.  I was awarded 40%, my C/P examiner asked me questions about the injury and my memory loss.  I could not remember enough to draw a copy  of a stick picture that she showed me during the exam. My exam was oral and all about 20 minutes.  I felt then that I was low balled because of the damage to my front left lobe, but they don't rate that kind of damage for TBI they only rate the residuals so because my brain was only damaged slightly,  I didn't get a higher rating. I said then and I say now, there is no reason that a veteran should get less than a 40% rating for TBI. Keep in mind I also did not have lingering headaches as you did. And they suspected that my left eye damage was a result of the injury to my head, but years later they can't prove this.  I still was rated 30% separately for the eye injury  anyway.  They also suspect my hearing loss is due to the TBI, but again years later they can't prove it.

 

Also see:     https://www.disabledveterans.org/2018/09/12/new-ig-report-on-traumatic-brain-injury-throws-thomas-murphy-under-bus/

https://www.disabledveterans.org/2014/05/16/va-screwing-tbi-vets-quick-facts-tbi-evaluation/

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I agree this might be basis for CUE.

If the VA had, in their possession, medical  evidence that would warrant a higher rating of the migraines-

at time of the decision 11 years ago, they have violated 38 CFR 4.6.

 

Richard 1984 made an excellent point:

"It appears based on what you stated that the VA ignored evidence about your headaches... also the va was forced to re adjudicate many claims for TBI based on using c/p examiners that had no experience or  medical knowledge to correctly identify TBI residuals. In fact,  based on the fact you were only rated 10%  I am positive that you received a low ball rating."

Attorney Ben Krause followed this issue at his web site"

https://www.disabledveterans.org/2018/02/28/va-oig-report-traumatic-brain-injury-disability-tbi-scandal/

Ben's own TBI ordeal is mentioned there.

and here is the link to the February 2018  IG report that he says vets should refer to, to obtain a better rating:

https://www.va.gov/oig/pubs/VAOIG-15-01580-108.pdf

It is 50 pages long but excerpts cited from certain pages , and annotated in the CUE ,will make your point.

 

 

 

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"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

They might have used the wrong diagnostic code for the migraines- if so that is a CUE too.

But in any event ,if they had medical evidence that warranted a higher rating 11 years ago, they made a decision that was detrimental to you , because it caused a manifested outcome, that was erroneous.

I have always made sure I put the date of the decision I am cueing, in the CUE itself, and also I always attach a copy of the rating sheet and/or whatever part of the narrative they used that contained their 'rationale'.

We have templates here and much on CUE itself.

Odd-I was going over some VA paperwork  I have and remembered that, even though the RO messed up my 1151 HBP claim, but reversed in 3 weeks under CUE I filed the day after I got the denial,  the Director, in two ridiculous phone calls to me about another issue, did apoologize to me for not giving me the Benefit of Doubt.

Benefit of Doubt does not apply to CUE,in any direct way- meaning you cannot CUE them because you disagree with the way they applied BOD, but the point I am making is this:

they deny us or BOD rights all the time-that has happened in just about every claim I have ever filed, that subsequently succeeded because I Never give Up.

But a valid CUE is,in fact a denial of our BOD rights, that is corrected with a proper decision.( an award under CUE)

Check the Evidence List for the 11 year old decision to see if they failed to address all of your evidence -which I am sure they did.

I had filed many CUEs using 38 CFR 4.6 and the last one, resevresd fast, did list my sole piece of evidence.

So I got a denial from some bogus examiner, who had the evidence to support my claim, yet he/she chose to completely ignore it.It came from the Strategic Health team, from a VA top cardio doctor, with expertise in the field of the claim. I expect to get the actual exam next week.

I felt that maybe the rater saw I used 38 CFR 4.6 alot in the past ,due to evidence in VA's possession which they did not list on the evidence list, so this time they listed the only piece of evidence I needed, but still it was a valid CUE under 38 CFR 4.6.

 

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Great information above Ms Berta   this is good info for every veteran out there.

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Buck, the whole TBI fiasco was a mess- TBI, the 'signature wound' re: OEF/OIF veterans, was a travesty to veterans, because the signature ability of the VA  to diagnose and rate TBIs properly , had to be changed.

This is a very long BVA decision:

But here are two main points:

"An initial disability rating of 40 percent from October 23, 2008, for TBI, but not higher or earlier, is granted, subject to the law and regulations governing monetary payments.


Under the provisions of Diagnostic Code 8045 in effect prior to October 23, 2008, purely neurological disabilities associated with the injury, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., were rated under the diagnostic code specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). 38 C.F.R. § 4.124a. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were rated 10 percent and no more under Diagnostic Code 9304, and could not be combined with any other rating for a disability due to brain trauma. Finally, ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008).

Effective October 23, 2008, the criteria at 38 C.F.R. § 4.124a, Diagnostic Code 8045 were amended to provide for evaluation of the three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI); emotional/behavioral; and physical. Each of these areas of dysfunction may require evaluation."


https://www.va.gov/vetapp16/files6/1647521.txt

( The retro date of October 23, 2008, was the date the new TBI regs went into existence. They are here somewhere in detail.)

It is always possible that VA, in spite of the new TBI regulations, used the older version and wrong diagnostic codes.-there are many TBI rating claims decisions at the BVA.

 

 

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Oh I know what you mean Ms berta

I still have a hard time understanding about TBI's and what they can be secondary to   I always have though that TBI  Veterans don't get a fair rating  because its so complex...and so many other conditions a TBI can cause or be related too.

I had a question to ask you that's been hounding at me for  some reason or another  and its totally useless now but I would like to know some kind of answer

Years ago back in 1968 my brother-in -Law was killed as a machine gunner  on the ground during a fire fight up at Quang Tri Provice during the Tet Offensive he was  PFC with the1st marine Div

   ok my sister was paid a 10.000 '00 check  after his Funeral...could  she have got DIC back then? its just something that's been on my mind  but is useless now to worry about...but may be ask this some day?

What is strange is they both wanted to have a better way at life  he went join the marines and he loved it and was very proud he join, and my sister was a beautiful woman and  wanted to get in  a professional career as a Model...and they both had great plans as to what they wanted to do with there life.

Well as faith had it that was not to be  my brother-in law lost his life on July 27th 1968 QuangTri Proviced South Vietnam on a Friday evening.

One year exactly from that date my sister lost her life in a horiffic  auto accident on Friday afternoon on July 27th both at the same age at death age 23.

I still remember the  weird feeling I had the day I seen my brother-in-law get on the city bus headed to the Airport as he scoop up his duffel bag over his shoulder and grab the bar to get on the bus I had a werid feeling about that as he wave by to me I gave him a thumbs up..who would have known things would end up like this...he was wearing his uniform and smiling.

http://www.virtualwall.org/df/FoleyWL01a.htm

Now maybe God has plans for therm in heaven  and I hope to see them both some day.

Edited by Buck52 (see edit history)
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My older brother was a Captain in the Marines up at ‎Khe Sanh Combat Base  from 1967-1968 he made it through his year and is still living at age 84

I was the only enlisted member of my family besides my brother-in Law I was US ARMY they were Marines. which we all served in Vietnam.in the late 60's I served from 69-71 and was discharge Honorably in 1972

Edited by Buck52 (see edit history)
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I am sure they are part of God's plans Buck. It is very sad, what you mentioned here today.

Congress developed DIC in 1956. She certainly was eligible for it.

The 10,000 might have been the amount of  Servicemembers Life Insurance in those days.

My husband was with 1st MarDiv in Vietnam too.

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