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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.


chibears3531

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The issue:

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?

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I will take these one at a time.  

First, unless you have an active appeal, apply.  If you dont like the effective date, you can appeal the effective date arguing you applied earlier.  Remember, your effective date is the later of the facts found or the date you applied.  Still, if you feel you met the critieria for a higher rating earlier, then you may be able to go after that effective date, possibly with a Fenderson, (staged) rating.  

Next, in the case of ED, its my opinion that the VA will "assume you are seeking treatment, not benefits" when you go to the doctor.  You need 3 things for an Informal claim for INCREASE:  

1.  Show an "intent to apply for one or more benefits".

2.  Specify the benefit sought.  

3.  It needs to be "in writing".  

     Its unclear that you "showed intent" to apply, but then, I have not read your file.  

You may have a point, about your 38 cfr 4.6 cue, if there is prima facie evidence in your file that you met the criteria for a higher rating.  However, Cues of this nature are rarely won, since disability percentage is usually a judgment call, and judgement calls are not cue.  

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I would love to hit a home run with this but I am sure someone else here can do a much better job telling you.  As for the separation I am not sure they will do it. Look up pyramiding. 

As for the rest peddle to the floor!

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2 minutes ago, shrekthetank1 said:

I would love to hit a home run with this but I am sure someone else here can do a much better job telling you.  As for the separation I am not sure they will do it. Look up pyramiding. 

As for the rest peddle to the floor!

Thanks for the reply!

The cognitive and fine motor speed impairment alone I think would warrant the TBI residuals 10% rating to avoid the pyramiding with a migraine rating.

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4 hours ago, chibears3531 said:

The issue:

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?

If you were clearly and unmistakably diagnosed with Migraine Headaches and not just "Headaches" in-service. You have a shot at seperating the Migraines from TBI. Be prepared for the VA to fight you on this tooth and nail.

ED can be claimed for Special Monthly Compensation. It's rated 0%, but since it is considered loss of creative organ, it is still compensable. ED is an extra $100.

OSA will be hard to direct-service connect if you were not diagnosed in-service. Secondary-service connection is the only way. Since you're service-connected for TBI....OSA is prevalent among TBI patients. Don't believe me? I'll just leave an article below. You could even secondary connect OSA to PTSD, if you're SC for PTSD.

You can still re-open a claim under the new law, but you'll have to submit "new and relevant" evidence in the supplemental claim lane. 

OSA and TBI article.pdf

Edited by doc25 (see edit history)
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3 hours ago, doc25 said:

If you were clearly and unmistakably diagnosed with Migraine Headaches and not just "Headaches" in-service. You have a shot at seperating the Migraines from TBI. Be prepared for the VA to fight you on this tooth and nail.

ED can be claimed for Special Monthly Compensation. It's rated 0%, but since it is considered loss of creative organ, it is still compensable. ED is an extra $100.

OSA will be hard to direct-service connect if you were not diagnosed in-service. Secondary-service connection is the only way. Since you're service-connected for TBI....OSA is prevalent among TBI patients. Don't believe me? I'll just leave an article below. You could even secondary connect OSA to PTSD, if you're SC for PTSD.

You can still re-open a claim under the new law, but you'll have to submit "new and relevant" evidence in the supplemental claim lane. 

OSA and TBI article.pdf 213.39 kB · 2 downloads

I was clearly diagnosed with migraine headaches in service (346.90), that paperwork is in my C-File, and they had it in their possession at the time of my claim for migraines.

Thanks for the link. Very interesting article. A doctor wrote an opinion that agrees with the TBI-OSA connection (see attached).

Is the 2008 C&P exam considered "new" evidence for a supplemental claim?

 

redacted imo_Redacted.pdf

Edited by chibears3531 (see edit history)
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ONE problem filing "cue" on this:

Its not so much about the date of diagnosis, as the degree of symptoms.  Sure, its possible to get an earlier effective date, but at what percent?  zero percent?  

You see, "judgement calls" by the rater are not cue.  One person could say your symptoms are 0 percent while another could say they are 10 percent or higher.  

This is one reason I tend to avoid file a CUE.  "judgement calls" are not undebatable and are therefore not cue.  

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9 minutes ago, broncovet said:

ONE problem filing "cue" on this:

Its not so much about the date of diagnosis, as the degree of symptoms.  Sure, its possible to get an earlier effective date, but at what percent?  zero percent?  

You see, "judgement calls" by the rater are not cue.  One person could say your symptoms are 0 percent while another could say they are 10 percent or higher.  

This is one reason I tend to avoid file a CUE.  "judgement calls" are not undebatable and are therefore not cue.  

I hear you. As it stands, I'm saving CUE as my last possible resort. And I'd go with an attorney if/when it comes down to that. I attached a copy of the C&P exam in question.

Pre-discharge va exams_Redacted.pdf

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