Possible CUE ?????

[Fat]

I know I'm beating a dead horse to extra death.

LOL............

However veteran group member Mark has a helluva claim and its quite fascinating.

Two incidents for headaches/head pain while on active duty.

Attempted to secondary service connect headaches to service connected Vertigo.

Claim denied due to no residuals of headaches and medical causation to Vertigo isn't feasible.

In addition, it was stated all medical records were reviewed and no service complaints or records of claimed disability.

 

The issue gets interesting because he has two records of doctor visits where the doctor noted headaches and head pain.

In addition, the doctor noted vascular migranes during the C&P exam.

If the regional office had located the information, they would have noted the inservice incidents and based on the C&P diagnosis they should have service connected at the 0% level (no residuals).

 

However failing to locate the two separate incidents and saying no service complaints or records of claimed disability killed the claim.

He is going to submit the two records/ C&P exam diagnosis with the supplemental claim paperwork.

 

Can he CUE a previous decision based on untrue statement of no inservice complaints or records of claimed disability?

[broncovet]

Yes.  Time after time 38 CFR 3.156 wins an earlier effective date.  Note, the differences between "new evidence" and "new service records".  

New Service records is the more favorable of the 2 because, if the VA denied because they were missing your service records, then you always get the EED.  (If sc).  

New Evidence is less favorable, this applies to a "pending claim".  A pending claim is still in the appeal period. (Generally 1 year for VARO decisions).  

What some people may not know is if you get a remand, then you can submit new evidence and it always goes back to the beginning of the appeal period, if awarded.  

[Fat]

Veteran Mark and his wife appreciates the information.......

He acknowledges the hill to climb with no formal headache diagnosis, but a similiar or like complaint of head pain is hopeful.

He is a bit disappointed in the VSO whom didn't read/know the CFR regulation to properly advise him.

However; it was brought to his attention, he didn't thoroughly read or investigate the decision letter rationale either.

He thinks he's on a good path.

Atleast the regulation gives him a path of service connection based on missed evidence.

NEVER GIVE UP............

 

 

[broncovet]

Whoa HOSS!

Fat posted:  

Quote

He acknowledges the hill to climb with no formal headache diagnosis

You dont need a diagnosis IN SERVICE .     Instead you need a CURRENT diagnosis for Service connection.  

This distinction is important.  One example of this is hep C.   People were not diagnosed for Hep C in the 1970's, because there was no test for it, and no diagnosis.  This did NOT mean you did not contact the malady in service, it meant you did not have a diagnosis is service.  

You get the diagnosis with a test currently, but must show an "in service EVENT", not an in service diagnosis. 

As always, refer to the Caluza elements:  These words are carefully  chosen by the judges:

1.  CURRENT diagnosis.  

2.  IN service Event or aggravation. 

3.  Nexus, or doc's opinion that the above 2 are linked.  

     While its true a diagnosis in service "could well suffice" as an "in service event", it is not always necessary that the malady be DIAGNOSED in service.  

Edited October 14, 2020 by broncovet

[Fat]

He has a current diagnosis of migrane headaches.

I was referring to a no diagnosis of migrane headaches in his service records.

Just complaints of headaches (due to cold) and head pain (due to exhaustion/dehydration) in the military files.

We are on the same page.

 

[GBArmy]

Fat As a side note, you have to change your profile...you're not politically correct. The REDSKINS are no more, sadly. They are the Washington Football Team now.

[Fat]

LOL.........

So true, I remember my first Redskin game at RFK stadium in October 1979.

It was spectacular due to the energy and the band.

Yes, the Redskins actually had a band and the team was a perennial contender.

I miss those times............