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  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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chibears3531

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.

Question

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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I think you are right but bronco and Berta and bequest and others can help more!

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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

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

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