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Effective Date for Request for Increase


bellrungboxer
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Question

I recently submitted a request for increase (30% to 50%) for my migraine headaches and when I was denied, they also dropped my rating to 0%. I am in the process of appealing and I am wondering if they are to deny the 50% and restore my rating back to 30%, will my Effective Date for the original Migraine rating be changed to the date of the increase request?

This would make a HUGE difference because if my GERD rating that is deferred from August 2018 were to be successful, it would have put me at 100% almost two years ago had I not made the mistake of submitting a migraine increase request in October 2019...did I screw myself here?

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Ok so we need to see why they dropped your percentage instead of increasing it.  This sound the exact opposite of what should have happened.  From what I see you should keep your 30% prior to the request for increase and then bump you up to 50%.  

Have your headaches improved?  what reason did they give to lower it???

Can you post the reduction here as there are many who have dealt with this crap and can help.  No personal information plz.

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VA in their wisdom loves to decrease veteran's migraine ratings because VA knows that some veterans will not appeal.  This is call a "Mischaracterization of the issue on appeal". I posted it somewhere here on Hadit. VA think they can get away with this, VA must not only give a veteran time to respond to their proposal to reduce. VA must also give a good medical rationale that your migraines have improved and they must prove it.  A simple C & P exam is not evidence that your condition/disability should be reduced. Your 30% should be restored and your increase should be granted if your migraines have gotten worst. If you have had a 30% migraine rating for five years or more they have become static and there are rules for reduction.

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"Unless" you received a proposed reduction, giving you 60 days for a hearing, this reduction should be void ab initio.  You did not mention if you received a proposed reduction.  However, if you received a proposed reduction and you did nothing, then the presumption is you are ok with the reduction.  

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I posted on this a little bit in another forum with Pete and Vync, but I never received a proposed reduction notice and my disability was supposedly "static" when it was given the EED of June 26, 2017. That decision letter has no date for reevaluation and states that "A higher evaluation of 50 percent is not warranted for migraine unless the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptibility. 

My very first rating's C&P, I only had an approximation and told the doctor it was roughly once a month. I went for the increase because my TBI doctor asked me to keep a log of my migraines in June 2019 and as of October 2019, I was averaging 2 workdays lost per month due to migraines with the highest amount being 3 days in a month. Literally, right before this C&P exam in December I had a two day long migraine and the doctor even made mention of it.

This was what the C&P Exam says:

Relevent portions of the C&P

Describe the History, Onset and Course: He has SCD for migraine HAs. Last VA C&P HA exam 11-15-2018 he says HAs have been "about the same intensity but the frequency is noted that that he has 2 or more occurances a month".

...

FUNCTIONAL ASSESSMENT:  he has to leave home and rest till HA subsides. This can be as often one to two times a month and up to two to three times a month. Last time is recently on Decemeber 9 & 10.

4. Prostrating attacks of headache pain: 

a. Migraine / Non-Migraine- Does the Veteran have characteristic prostrating attacks of migraine / non-migraine headache pain? [X] Yes [ ] No

If yes, indicate frequency, on average, of prostrating attacks over the last several months: [X] With less frequent attacks

b. Does the Veteran have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability? [ ] Yes [X] No

...

7. Functional impact 

Does the Veteran's headache condition impact his or her ability to work? [X] Yes [ ] No

If yes, describe the impact of the Veteran's headache condition, providing one or more examples: please see above medical history section above

8. Remarks, if any:

this is an INCREASE exam for veterans SCD migraine headache condition. See my remarks below:

REMARKS: The severity of the veterans migraine HA condition appears to be stable since last C&P DBQ HA exam 11-5-2018. The veteran feels that the intensity of the headaches is unchanged but may be occuring more frequently. The only new information noted in the record is a private PT note on 11-21-2019 that states Dx's "shoulder pain, right (M25.511 and Cervicalgia (M54.2)". And the report adds the note "shoulder pain causing headaches". The note also remarks that the pt. has h/o migraines. The PT report continues with: "Dx - R shoulder pain neck pain, related to postural deficits,MrTP noted, over activity of muscle groups related to stress and anxiety." No other new medical information foudn regarding the veterans SCD migraine HA condition.

 

So his C&P exam is conflicting. He states that I have to be home from work because they're prostrating, but it doesn't impact my economic inadaptability...I have 2 or more occurrences a month, but he stated it is "less frequent attacks". He also then somehow confused a shoulder claim I have with my TBI related migraines. In all honesty, this doctor is in his late 70s or early 80s and struggled to use his computer to go through my records...which made us run out of time on the exam and he said he would complete the rest on his own.

Here is the Decision Letter:

Quote

Evaluation of migraines, headaches currently evaluated as 30 percent disabling

The evaluation of migraines, headaches is decreased to 0 percent effective December 11, 2019, the date of your compensation examination which shows that your condition has improved. (38 CFR 3.105, 38 CFR 3.501)

***Please Note: This decision does not change your combined evaluation nor does it change your current monthly compensation payments.

We have assigned a noncompensable evaluation for your migraines, headaches based on: 

- Less frequent attacks (38 CFR 4.31)

A higher evaluation of 10 percent is not warranted unless there are characteristic prostrating attacks averaging one in 2 months over last several months. (38 CFR 4.124a)

 

Edited by bellrungboxer
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Well...disregard my previous post.

My VSO had a coach contact our VARO about my missing claimed conditions on vets.gov, and they just called me to say that the migraines were increased from 0% to 50%! 

I finally reached 100% P&T!!!

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15 hours ago, bellrungboxer said:

I finally reached 100% P&T!!!

Hey, congrats and welcome to the club nobody ever wants to be invited to!

If I were you, I wouldn't stop there - Unless you are content with ALL of your ratings and SC'd contentions (don't forget to claim secondaries!). I'm awaiting a few things to come back from C&P's and Hearings.

All in all if everything I have claimed goes through I'll have a (combined) % of around 280%+/- (some of it I'm still gauging how the criteria is applied) --Not trying for a "high score" with this, but what it will prevent is potential loss of 100% P&T due to waxing and waning of different symptoms.

Needless to say, I'll be joining the 100 Club in due time.

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17 hours ago, bellrungboxer said:

Well...disregard my previous post.

My VSO had a coach contact our VARO about my missing claimed conditions on vets.gov, and they just called me to say that the migraines were increased from 0% to 50%! 

I finally reached 100% P&T!!!

Congratulations!

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GREAT News-

has the VA formally declared the 100% P & T status yet? 

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Nothing formal yet, and I'm shocked at how quickly they made their decision on this supplemental, so I'm holding off on the real celebrations until then. When my claimed conditions disappeared in vets.gov tracking, I asked my VSO if there was a reasoning for it. She stated that the 0% to 50% cleared, but my IBS claim was yet again denied because they continually confuse it as being a claim for diverticulitis (which I also have). They combined  the two of them as "diverticulitis with irritable bowel syndrome" so that they can continually made the argument that there is no sign of diverticulitis, so nothing is warranted despite IBS being an entirely different issue. 

So there is a fight there to be won since it is secondary to the anxiety/depression from my TBI, and I'm still waiting to hear back on my secondary Central Sleep Apnea and GERD claims. If the GERD comes through, I'm putting my money on an EED appeal. Those should be 30%, 30%, and 50% and give me breathing room above the 100%. 

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Congratulations!  

Victory is sweeter, when it takes longer!

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10 hours ago, awgv001 said:

If I were you, I wouldn't stop there - Unless you are content with ALL of your ratings and SC'd contentions (don't forget to claim secondaries!).

You prompted me to do a double check on my EEDs to see if there were any issues...at a quick glance of my second set of claims they definitely put the effective date of my C&P (Aug. 2018) rather than the date they received my submittal (March 2018) for several issues that were in my STRs.

The GERD was in that group and would have netted me a 100% at that time if they rated me for the 30% it should be...so I'm wondering if I have a case for a few extra months of back pay.

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14 hours ago, bellrungboxer said:

The GERD was in that group and would have netted me a 100% at that time if they rated me for the 30% it should be...so I'm wondering if I have a case for a few extra months of back pay.

Yeeaahhhh, I'd get that reviewed for sure.

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On 3/13/2020 at 6:31 PM, bellrungboxer said:

they definitely put the effective date of my C&P (Aug. 2018) rather than the date they received my submittal (March 2018)

Now that I'm thinking about this, I don't know that I can file a NOD for the effective date because I think I'm past the 1 year mark. I might be able to push my GERD back to the correct date, but it won't do me any good if my other issues aren't also moved to the correct date...

...maybe this would be a CUE claim since it would have sent me from 90% to 100% at an earlier date?

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Well, when you dont appeal within the 1 year, you make it more difficult to win.  This said, there is a regulation on effective dates for increase...which I didnt even know about until a board decision granted it.  The regs on effective dates are here:

https://www.law.cornell.edu/uscode/text/38/5110

Now, see this one on increases:

Quote

 

(3)
The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.
(4)
(A)
The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.
(B)
A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

 

This was worth a year of retro for me.  (It was about 35k).  I didnt know the regulation, but appealed the effective date, and the Board applied this regulation and gave me an extra year.  
Your Cue, would be that the VA "failed to comply" with the regulation cited above.  
Edited by broncovet
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Thanks @broncovet,

As I read more and more on this website, I'm learning quite a bit about my situation. I'll take a look at the increase for the migraine headaches, but since my situation is that I did not give an accurate account on the frequency of them at my first C&P exam, my guess is that they won't rate it back to the original claim date...but I won't complain if they do. 

The supplemental claims I am waiting on being reviewed are for Mixed Sleep Apnea (Secondary to TBI, should be 50%), Migraine Headaches (increase to 50%), GERD (Secondary to anxiety/depression, should be 30%), and they combined my IBS (should be 30%) with a SC 0% rating for Diverticulitis.

My VSO called to let me know that my Migraine Headaches were going to go up to 50% and put me at 100% P&T, but made it sound like my IBS & Diverticulitis was still rated at 0% because they are for some reason rating it as if it is a peritoneal adhesion rather than IBS symptoms...the IBS symptoms hit 30% no problem and the higher rating should prevail...but they keep saying that although I have near constant alternating diarrhea and constipation, bloating, and gas pain (IBS 30%) I don't meet the peritoneal adhesion for 10%, so it is a 0% SC rating.

However, I just learned about 4.114 (Pyramiding Digestive Issues), which may change things. Currently my GERD is being rated separately from the other digestive issues and is showing that it is still "deferred". It seems like they would end up combining it with the IBS and Diverticulitis, and hopefully give me 30% for the rating because I know my symptoms meet the 30% GERD rating to a T...I also hope they would rate these secondary to my anxiety/depression, which is a static disability.

The hope that I have for a change to the effective dates for my previous shoulder, ankle, laryngitis/pharyngitis, and GERD claim, is that I am awarded the GERD and it is set at the incorrect August 28, 2018 date. I will then file for a NOD based on the fact that two of my rating decision letters (Feb 2019 and Sept 2018) that involved these claims state the following: 

Quote

You filed an original disability claim that was received on March 30, 2018. Based on a review of the evidence listed below, we have made the following decision(s) on your claim.

DECISION (02/01/2019)

1. Service connection for right shoulder acromioclavicular joint osteoarthritis with degenerative arthritis to include infraspinatus tendon partial thickness tear, with instability & dislocation is granted with an evaluation of 20 percent effective August 28, 2018.

2. Service connection for laryngitis (claimed as acute pharyngitis) is granted with an evaluation of 10 percent effective August 28, 2018.

3. Service connection for right ankle lateral ligament sprain with degenerative arthritis is granted with an evaluation of 10 percent effective August 28, 2018.

4. Service connection for diverticulitis is granted with an evaluation of 0 percent effective October 24, 2018.

...

7. Service connection for GERD is denied.

EVIDENCE

  • STRs received May 15, 2018, covering military period July 2, 2007 through June 2, 2009.
  • DD Form 214, Certificate of Release or Discharge from Active Duty, Dated March 30, 2018.
  • VA Form 21-4142 Authorization and Consent to Release Information to Department of Veteran's Affairs, received December 19, 2018.
  • Applications - Original Claim: VA 21-526EZ, Fully Developed Claim (Compensation) received March 30, 2018.
  • Applications: VA 21-0966 Intent to FIle received June 26, 2018
  • Representation - National Service Organization: VA 21-22 Appointment of Veterans Serv. Org. as Claimant Rep received June 26, 2017.
  • Correspondence - Miscellaneous: Email Correspondence; STR request send to VBMS received April 11, 2018.
  • Correspondence - Subsequent Development Letter; VAE Notice received May 15, 2018.
  • Military Personnel Record, from March 30, 2018 through May 15, 2018.
  • Non-Medical Evidence: Web/HTML Documents; DPRIS request screenshot received June 20, 2018.
  • Correspondence: Correspondence; Cancelled CAPRI Initial TBI DBQ by RO received June 20, 2018.
  • Medical Records: C&P Exam; DBQ NEURO Initial Evaluation of TBI received July 19, 2018
  • Medical Records: C&P Exam; DBQ Medical Opinion DBQ Medical Opinion (Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) received July 19, 2018.
  • Medical Records C&P Exam; DBQ Medical Opinion (TBI Initial-at least as likely as not) received July 19, 2018.
  • Medical Records: C&P Exam; DBQ Medical Opinion (Headaches (Including Migraine Headaches-at least as likely as not) received August 03, 2018.
  • Medical Records: C&P Exam; DBQ NEURO Headaches (including migraines) received August 03, 2018.
  • Medical Records: C&P Exam; DBQ PSYCH Mental disorders received August 16, 2018.
  • Rating Decision, dated September 11, 2018.
  • VA susequent letter concerning your claim, October 12, 2018.
  • Notification of intent to file, October 24, 2018.
  • Private medical evidence, October 25, 2018.
  • VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits, October 25, 2018.
  • VA Examination, VAMC, dated November 5, 2018.
  • VA subsequent letter concerning your claim, November 30, 2018.
  • Private Treatment Records, dated December 11, 2018.
  • Patient Treatment Records, dated December 13, 2018.
  • VA Letter concerning your claim, dated December 24, 2018.
  • VA Form 21-0820 Report of General Information, dated December 26, 2018
  • VCAA Notice Response, received December 27, 2018
  • Private Treatment Records, dated January 9, 2019
  • Private Treatment Records, dated January 15, 2019
  • VA Form 21-0820 Report of General Information, dated January 16, 2019
  • VA subsequent letter concerning your claim, January 16, 2019
  • Outpatient Treatment Records, VAMC, from November 5, 2018 through January 28, 2019
  • VA letter concerning your claim, dated January 31, 2019

Shoulder, laryngitis, and ankle state that "An evaluation of XX percent is assigned from August 28, 2018, date of receipt of your claim for this condition"

Diverticulitis states: 

4. Service connection for diverticulitis,

Service connection for diverticulitis has been established as directly related to military service. A noncompensable evaluation is assigned from October 24, 2018, date of intent to file.

We have assigned a noncompensable evaluation for your diverticulitis based on:

  • Alternating diarrhea and constipation
  • Frequent episodes of bowel disturbance

A higher evaluation of 10 percent is not warranted for adhesions of the peritoneum unless the evidence shows moderate symptoms demonstrated by pulling pain on attempting work or aggravated movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. 

Additionally, a higher evaluation of 10 percent is not warranted for irritable bowel syndrome unless the evidence shows moderate symptoms demonstrated by frequent episodes of bowel disturbance with abdominal distress. 

Additionally, a higher evaluation of 10 percent is not warranted for ulcerative colitis unless the evidence shows moderate symptoms with infrequent exacerbations.

GERD states:

7. Service connection for gastro esophageal reflux disease (GERD)

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. 

A disability which began in service or was caused by some event in service must be considered "chronic" before service for gastro esophageal reflux disease (GERD), no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. Therefore, service connection for gastro esophageal reflux disease (GERD) is denied.

The VA medical opinion found no link between your diagnosed medical condition and military service. The VA medical opinion found no persistent disability.

 

 The September 11, 2018 decision letter granted the TBI, migraine, and depression/anxiety, but deferred the other items above. The introduction still says that the original disability claim was received on March 30, 2018, and has no mention of anything being submitted or received August 28, 2018. The TBI, migraine, depression/anxiety, and my tinnitus were all in my very first intent to file June 26, 2017. The rest of the issues (aside from my diverticulitis) I'm assuming were submitted as claims after their receipt of my service treatment records showed these diagnoses because I never personally submitted them myself. 

I have contested the diverticulitis/IBS twice since this letter and the noncompensable evaluation basis has also included: 

On May 2nd, 2019

  • Abdominal distress
  • Disturbances of bowel function (38 CFR 4.31) 

On January 4, 2020

  • Alternating diarrhea and constipation
  • Diarrhea (38 CFR 4.31) 

 

Sorry for the encyclopedia, I tend to lose focus and ramble (TBI), so I hope some of this made sense. I wish I had found this community earlier, but you all have been helping me a ton since joining, so thank you!

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ITF should give you June, 2017 effective date "unless" the facts found are different.  Example:  You apply in June ,2017, but your doctor says you were not disabled until a c and p exam in 2019.  Then, the facts found would not support a 2017 effective date.  

This said, the doctor "should" give an effective date.  But if the doctor does not mention an effective date, the va always uses the c and p exam date.  

Your effective date is the later of the "facts found" or claim date.  ITF works for the claim date, if you apply within a year, but, VA often forgets the ITF, so you have to appeal to get the ITF date.  

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You could even get 1 year EARLIER than the ITF date in the event its a claim for increase, under the regulation I posted previously.  

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@broncovet I think I figured it out, and I'm afraid it won't be in my favor, but I could be wrong. I looked through "My Documents" tab on eBenefits, and the earliest document available on there is a VA 21-526EZ, Fully Developed Claim that was signed and submitted by my VSO on August 28, 2018. It lists my shoulder, ankle, laryngitis, GERD. I'm guessing that my VSO saw these items in my STRs and put the claim in for me. These issues would have all been dated back to their diagnosis date while in the service circa 2007 to 2009. 

 
What is surprising is that this claim includes my tinnitus claim as well. I cannot remember if I had claimed the Tinnitus for my original ITF that had the TBI/Migraines/Depression, but the award date for the Tinnitus claim was set to my original ITF date of June 2007. These were all combined into one claim, so maybe that is why it is all screwy. Your comment on the doctor giving an effective date, would this be found in the C&P exam? 

I am hoping my VSO is willing to comb through the C-file to sort this stuff out...

Edited by bellrungboxer
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Dont count on your VSO to comb through it and you wont likely be disappointed.  The VA should grant the effective date of the ITF "provided that" you or your representative filed a claim within a year of the ITF.  

Instead, timely file an appeal disputing the effective date, OR, if the VA messed up and did not count the correct ITF, then it could well be CUE.  You may need an attorney to prevent leaving money on the table. 

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On 3/16/2020 at 7:46 AM, broncovet said:
(3)
The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.
(4)
(A)
The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.
(B)
A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

So I took a look through Myhealthevet and found a note from November 2018 where my infectious disease doctor noted that I had "1 to 2 migraines a month" when I was hospitalized for meningitis. I was just approved for 50% due to 1 to 2 migraines per month and sometimes lasting more than one day, which was submitted October 2019. Aside from that, I submitted my migraine log that went back to July 2019, so maybe there is a fighting chance...but what I don't understand in the quoted text above is what is listed in subparagraph B. This was the rating that took me to 100% P&T, but I don't get the 30 days part.

 

Hopefully all of this is moot if another claim of mine that goes back to August 2018 gets approved.

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