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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

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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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  • Similar Content

    • By mikeypanza@yahoo.com
      Evaluation of migraine headaches currently evaluated as 0 percent disabling.
      The evaluation of migraine headaches is continued as 0 percent disabling.
      We reviewed the evidence received and determined your service-connected condition(s) hasn't/haven't increased in severity sufficiently to warrant a higher evaluation.
      The examiner for exam conducted on June 9, 2020 opined that you they do not meet medical criteria for prostrating.
      We have assigned a noncompensable evaluation for your migraine headaches based on:
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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



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      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • If HadIt.com has helped you or you believe in it’s mission then please donate even $1 helps. I hope HadIt.com has provided $1’s worth of help to you. Imagine waking up and there is no HadIt.com it could happen and that is why I’m asking for your help now.



       



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      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
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