So is this a Clear Error

[ROMAD]

I was reviewing my Rating Decision from 1993 and I noticed that the requirements for a higher 50% rating required "very frequent" attacks versus the lower 30% rating  that required once per month. In the previous paragraph in the decision they mention my attacks last 3 to 6 months with 3- 10 attacks per day lasting as long as several hours. They rated me at 30 percent. Does this seem wrong to anyone else? They also did not list my arthralgia as service connected even though it was within a year of separating from active duty. I thought my lay statement should have been enough for that to be part of the record but it is not. Is this a CUE also? Documents are attached. Thanks in advance for any feedback that may be helpful.

 

Sanitized1.pdf Sanitized2.pdf

[ROMAD]

So not this

[Berta]

I don't see CUE in the bilateral shoulder denial.

They clearly spelled out what evidence you would need to re open the shoulder claim.

You seem to have  arthralgia as due to the prime condition of shoulder disability.

I assume you have your SMRs and have found nothing to support any inservice shoulder problems.Or maybe you do have the SMRS and they do reveal treatment for this bilateral shoulder problem.

Do your SMRs reveal treatment for the arthritis, or as the denial states, treatment and disabling to at least a ten percent level?

Do you have medical treatment records from discharge to present ,for this condition?That would show chronicity.

 

[Berta]

Are the cluster headaches rated with Diagnostic code 8100?

If so maybe this case can help you:

The veteran's NOD was received in 1991 and this BVA decision is dated  1994 so I believe the rating info here applies to your headache claim:

https://www.va.gov/vetapp94/files1/9402432.txt

"CONCLUSIONS OF LAW

1.  The veteran's cluster headaches are 50 percent disabling,
according to the schedular rating criteria.  38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.20, Part 4, Code 8100
(1993)."

The veteran wanted a higher rating but the BVA stated:

"I.  Cluster Headaches

The veteran served on active duty for 15  and one-half years.  During
this period of time, his service medical records show that he had
multiple hospitalizations for treatment of cluster headaches.  Toward
the end of his active duty service, he was complaining of headaches
as frequently as 5 to 6 times a day.  In September 1990, he underwent
a Vidian neurectomy.  Post-operatively, he did well with relief of
headaches; however, there was a recurrence of the headaches
approximately one month following the surgery.  In December 1990, he
was again hospitalized prior to a military medical board evaluation.
The results of a neurological examination, conducted while the
veteran was hospitalized in January 1991, were essentially normal.
The impression noted was chronic cluster headaches.  The 1991
military Medical Evaluation Board report notes that the veteran was
experiencing 2 to 8 headaches a day, each lasting approximately an
hour or longer.  At the time, he was receiving only moderate relief
with narcotic analgesics.  The prognosis for recovery was listed as
guarded.  The physical examination report also notes that the veteran
had a history of chronic cluster headaches that had not responded to
various treatment protocols.  The report concluded that this
condition restricted the veteran's ability to perform his military
duties and that the veteran's condition rendered him unfit for
further active duty service.

VA's Schedule for Rating Disabilities is used for evaluating the
degree of disabilities in claims for disability compensation.  The
provisions contained in the rating schedule represent

as far as can
practicably be determined, the average impairment in earning capacity
in civil occupations resulting from disability.  Ratings are based,
as far as practical, upon the average impairment of earning capacity
with the additional proviso that the Secretary shall, from time to
time, readjust the schedule of ratings in accordance with experience.
In exceptional cases, where the scheduled evaluations are found to be
inadequate, an extraschedular evaluation commensurate with the
average earning capacity impairment due exclusively to the service-
connected disability, or disabilities, may be made.  The governing
norm in such cases is to make a finding that the case presents such
an exceptional or unusual disability picture with related factors,
such as marked interference with employment or frequent periods of
hospitalization, as to render impractical the application of the
regular schedular standards.  38 C.F.R. § 3.321 (1993).

When an unlisted condition is encountered, it will be permissible to
rate the condition under a closely related disease or injury in the
Schedule for Rating Disabilities in which not only the functions
affected but the anatomical localization and symptomatology are
closely analogous.  Conjectural analogies will be avoided, as will
the use of analogous ratings for conditions of doubtful diagnoses or
for those not fully supported by clinical and laboratory findings.
Ratings assigned organic diseases and injuries will not be assigned
by analogy to conditions of functional origin.  38 C.F.R. § 4.20
(1993).

VA's Schedule for Rating Disabilities rates cluster headaches
analogous with migraine headaches.  Under Code 8100, a 50 percent
evaluation requires very frequent, completely prostrating and
prolonged attacks productive of severe economic inadaptability.  This
is the maximum schedular rating afforded for service-connected
cluster headaches.

In the case at hand, the veteran's cluster headaches are rated 50
percent disabling.  For a rating in excess of 50 percent, the record
must reflect an exceptional or unusual disability picture.  A review
of the veteran's medical records does not show that such exceptional
circumstances exist.  The latest clinical evidence, as noted at the
military medical evaluation shortly before his service discharge in
1991, shows the veteran experiencing 2 to 8 headaches a day with
normal neurological examination findings.  The veteran was recently
afforded the opportunity to undergo VA examination for evaluation
purposes but he did not report for the scheduled examination nor did
he express his desire to have the examination rescheduled, although
he was invited to do so.  Under the circumstances, the 50 percent
disability rating properly reflects the severity of the veteran's
cluster headaches."

 

[Berta]

In this more recent BVA decision there is rating info for DC 8100  and the BVA has defined "prostating":

https://www.va.gov/vetapp19/files6/19150063.txt

Perhaps you can re open the headache claim, if you fit into the 50%  current criteria.

[ROMAD]

I am rated 50 percent and have been since 2006. I had not noticed that I met the requirements even  when I was MED Boarded out of the AF. I was wondering if I should have had that rating beginning in 1993 since nothing changed between 1993 and 2006. So  I had prostrating attacks lasting for hours  and  continuing for months at a time. But in your youth (or my youth) it did not occur to me that I should have been rated higher at the time. I am in the process of filing a claim for sleep apnea  and I was asked by the VSO why I was not rated higher when I got out since I met the requirements and I did not have an answer. So I was just looking for another set of eyes to see if I should or am eligible for CUE because they did not rate me properly in 1993, so just from 93 to 2006.

[ROMAD]

Berta, as far as the shoulders go I claimed the shoulders within that year after separating from Active Duty. I have nothing in my Service Med records because I did not go to sick call for it because I would have been disqualified for my job. But it was my understanding that I had a year to file a claim and it would still be "service connected"  They took x-rays but I never heard anything else after the x-rays just that I had arthralgia in both shoulders and it was not service connected. So I guess my question is, if I have a shoulder issue and claim it within a year would that not be service connected  regardless of if it is 0 percent or 30 percent. It seems they acknowledged the condition but did not service connect it.