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]

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?

[broncovet]

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.  

[chibears3531]

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