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?

[USMC_VET]

If i remember correctly the two incidents were related to related to hving a cold and another from the heat.  Im not denying this veterans claims of vertigo, migraines being service related etc but from whats been written its quite clear the headache incidents that are on record dont have much to do with vertigo and was clearly stated as being a result of a cold (normal symptom) and heat stroke (common symptom). Im not one to tell a vet not to make a claim or appeal, but i highly highly doubt this is a case of unmistakable error that the rater looked at claim for headaches being secondary to vertigo and the inservice incidents were not out of blue or consistent but directly tied to specific non vertigo temporary illnesses with no other complaints after.

Once again not denying it might be related i dont know everything, but those two incidents dont really tie to anything else other than a cold and heatstroke

[pacmanx1]

I am not sure what was posted before but keep in mind that when a veteran files a claim for CUE, he/she loses the benefit of doubt. Look at it this way, as for direct service or primary service connection. The veteran had two incident of migraines note in his records, these incidents were not noted as chronic or recurring or frequent or anything that could make someone believe that his migraines were a disability or would handicap his employment or daily life. 

Now for secondary, he may have a claim, but he would need a medical opinion that his migraines are secondary to his service-connected vertigo with a good medical rationale.  The only possible way to claim Cue is that the veteran would have to prove that his migraines should have been rated when the veteran vertigo claim was rated, that means the veteran filed a claim for headaches/head pain and there was evidence that proved the veteran's migraines reached at least  10% rating.  Even if VA granted a 0% rating there would be no retro payment, so it would have to be 10%.  Remember for a condition to be considered a disability there should be at least six consecutive month of being active. I know we talked about continuity of symptoms.  

[broncovet]

This is a classic case of 38 CFR 3.156 (c) NEW SERVICE RECORDS.  

You submit these "new records" and you should get the original effective date, if awarded.  

Read this: 

   

Quote

§ 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

 

 

[USMC_VET]

16 hours ago, broncovet said:

This is a classic case of 38 CFR 3.156 (c) NEW SERVICE RECORDS.  

You submit these "new records" and you should get the original effective date, if awarded.  

Read this: 

   

 

I cant say what they reviewed or didnt review but the veterans claimed in service incident were both singular events directly related to a illness unrelated to the claim.  If i was making a IBS claim and in my service record there were two GI med visits but those doctors notes said that i came in complaining of diarrhea and was diagnosed with the flu they arent going to consider that IBS related but flu related.  I may be giving the VA too much of the benefit of the doubt, but they arent lying when they say there isnt any service records or complaints in service.  They are looking in the records for complaints related to migraines, they found complaints related to the flu and heat related illnesses that are common symptoms of those illnesses and no further complaints to make this a chronic issue outside of the flu/heat

[Fat]

I appreciate all comments.

However, the key component is similiar or like symptoms and conditions.

Trying to remember the full conversation, the veteran complained of head pain from cold and possible heat exhaustion.

A lay view would summarize head pain due to a cold or possible heat exhaustion.

The key component is head pain from the incidents.

A medical doctor, neurology doctor, based on training and all evidence of record (STR's, private treatment records, and current care diagnosis) can establish the causation if possible.

Military doctors do a wonderful job, however sometimes the diagnosis are incomplete without further workup.

 

The part that's interesting is the EED to the date of STR's.

Can a veteran really get the early effective date if it is shown records of injury/sickness were overlooked in the initial decision?

BroncoVet can you expand on the subject.

 

Does it take a formal CUE or simply attachment of STR's with the supplemental claim?

[Fat]

Thanks BRONCOVET..........

I have forwarded and finished reading 38 CFR 156 (c) and specifically part 3.

My interpretation.

1. If service records related to claimed condition were omitted or not part of claim file, the VA will reconsider the claim not withstanding (in spite of) paragraph a (new and relevant material).

2. If an award is based on all or parts of the records identified in paragraph c, the effective date is the date entitlement arose or the date the VA received the previously decided claim.

 

This is game breaking information. 

 

The VA will reconsider the claim in lieu of new and material standard based on omitted records related to the claimed disability.

a. incidents of headache and head pain should have been properly considered and documented in claim record.

 

If the omitted records are useful in adjudication, the early effective date is the date the claim was submitted or date of a diagnosis.

a. I don't know the exact date filed, maybe 2011 or 2012.

b. The veteran was diagnosed with vascular migranes during the C&P exam.