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

[Berta]

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.

 

 

 

[Berta]

"§ 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.

 

[Buck52]

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

[Berta]

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.

 

 

[Buck52]

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 April 19, 2019 by Buck52

[Buck52]

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 April 19, 2019 by Buck52