VA ordered new C&P exam after new material evidence

[Recondo@53]

Hi, another one for you here. Denial of entitlement to an evaluation in excess of 0 percent for migraine headaches, Jan 2020. Reason for denial by De Novo review as follows: "We have reviewed the evidence and found it does not support you experience prostrating attacks that would warrant an evaluation in excess of 0 percent. While your testimony is credible, the probative evidence does not show your reported symptoms cause extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities, or result in substantial work impairment."

With that, I submitted new material evidence Nov 2020 by rehabilitation hospital M.D. who reported I have 5-7 headaches a week that require me to lay down for over an hour and take medication. He also noted aura and vertigo and my headaches where hard to control. In my supplemental statement of case, I requested them to review my ER visit for Migraine and the following day I presented as a walk in to Primary Care because it came back. I also noted in the original C&P exam in which the examiner stated they were not prostrating, but he also mentioned that I have weekly headaches where I have to lie on the ground for an hour or two affecting my work. All notes, ER visit 2016, C&P exam dated 2018 and new material evidence dated 2019 provides consistent periods of prostrating events and asked them to review as such. I also provided evidenced-based clinical literature showing productivity and impairment, and financial impact due to migraine but also requested VA to consider whether the migraines where at least capable of producing severe economic inadaptability and not just actually produces as the court has held they need to assess both. 

With that, just as of today, I get a call from LHI stating they need to schedule me a C&P exam for headaches. However, the last exam was just done 2018. Why would they do this and what is my course of action? Thank you taking the time to help!

Edited November 17, 2020 by Recondo@53

[pacmanx1]

First, the 2018 C & P exam in way to old. Second, it seems that you filed a claim, and it was rated and denied in Jan 2020. You recently filed a supplemental with new medical evidence Nov 2020 and VA has scheduled you for a new C & P exam.  It is normal for VA to schedule a new/current C & P exam prior to making a new decision.  This is a good thing.

[Recondo@53]

Original claim was filed in 2017. 2018 0 percent rating in which I filed a NOD. Submitted statements and chronology of evidence which VA denied excess rating as noted above. I missed the 60 day window, but remembered the new material evidence which clearly links prostrating attacks and an economic in-adaptability. I believe the evidence is clear and should be back dated and paid to 2017 claim, considering the previous exam is conflicting with what the courts have held with regard to needing to lie down and the weight of evidence in favor of me, I’m confused for the reason of this new exam. What barring would it have in the historical evidence they already have? Thanks for your time! 

[pacmanx1]

VA will do whatever VA will do, with that said,  I think you really know the answer but here I go anyway. Yes, VA can make your effective date the date of your original claim. You posted that you missed a 60-day window. Technically, VA can make your effective date the date they received your new medical evidence. Without knowing/showing a good cause for submitting late evidence, VA does not have to honor your original claim, this claim is no longer in continued pursuit. It is your choice to try to get the EED (EARLIER EFFECTIVE DATE), but the decision will still be up to the VA. As stated in prior post, it is typical for VA to schedule/reschedule a medical exam and or medical opinion to show a current diagnosis and a current level of disability prior to rating a percentage. Was this a BVA decision or a local VARO decision? What type of decision is this and what 60-day window did you miss?

[El Train]

I think you will probably be increased to the date of your NOD with additional evidence.  At least that's the way it worked for me.  And yes, I had C&P's requested by the VA after I filed NOD's with additional evidence.  A lot of them.  Your lucky you're having LHI do your exam.  I've gotten favorable results every time I've had a contract examiner do my C&P's.

[jfrei]

I went through the same hoops but of course I was 0 percent for 8 years before they made me 50% by going to my LHI appointment and not getting my appointment together with my TbI residuals. At least they ordered a second one that was my good sign....

[Fat]

Looks like you are headed in the right direction.