Veteran needing help with HLR

[jbrav123]

Good afternoon,

I needed some advice in regards to my current VA battle for an effective date change.

 

THANK YOU IN ADVANCE

Timeline:

April 2013: (During Service) I was taken to the emergency room for headaches and nausea where CT scans were taken. This occurred during training on active duty.

- ever since then they have only worsened

Feb 12 ,2018: Filed Claim for headaches

May 4,2018: Claim DENIED for headaches

I was unaware of supplemental claims and truly didn't think I had anything to prove the decision was incorrect so years went by.

October 20,2020: Opened claim for headaches again (no new evidence, and didnt know a supplemental was needed) However, somehow I was granted a C&P exam. During the C&P exam with a VES Neurologist, he was able to pin point the incident that occurred in 2013 during Active Duty where I was sent to the ER for headaches. He confirmed it was service connected.

October 21,2020: Claim closed (denied), The VA closed it and told me that I had to submit a Supplemental since I had already been denied for headaches previously (2018). So I submitted a Supplemental Claim, stating that I would like to have the same C&P report that was most recently done to support my claim for service connection. (Again nothing in my file changed in 2018-2020 in regards to headaches, this VES Neurologist (2020) was able to locate the incident that occurred during my service whereas in 2018 it seemed like they just didn't catch that incident.

October 23,2020: Claim for headaches approved 30% (effective 11/1/2020)

Nov 6,2020: VA received my HLR for effective date change.

My decision letter from 2018 states:

• "Service connection for headaches is denied since this condition neither occurred in nor was caused by service."

 

October 20,2020

Service connection for headaches.

• Service connection for headaches has been established as directly related to military service. (38 CFR 3.303, 38 CFR 3.304)
• The effective date of this grant is October 20, 2020. Service connection has been established from the day VA received your claim. When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date VA received the claim. (38 CFR 3.400)
• An evaluation of 30 percent is assigned from October 20, 2020.
• We have assigned a 30 percent evaluation for your headaches based on:

                          - Characteristic prostrating attacks occurring on an average once a month over last several months

Edited November 17, 2020 by jbrav123

[Miken2c74]

@jbrav123, it is a pleasure to comment on this post. If I understand you correctly you originally filed the claim for migraines in 2018 and like so many of us it was denied. Unfortunately the claim will not backdate to 2018 because you did not file an appeal of that decision within the year threshold.  However, you did refile the claim (Supplemental) and got the claim reopened therefore October 20, 2020, would be the effective date of this particular claim. So to recap if you had filed an appeal for the initial claim (2018) and continuously fought this claim, then you could file an HLR for the effective date.  For once VA is correct

[broncovet]

 

      YES, you likely can win an earlier effective date (EED), but it will require effort on your part.

Since you did not timely appeal the 2018 decision, you limit your responses, and made it a bit harder on yourself, but I still think this is winnable, based solely on what you posted, mostly because of this GEM of a regulation:  38 CFR 3.156 C, which sounds like it was almost like someone custom made that regulation for you:  This regulation allows you to "reopen" your claim due to new SERVICE records.  This is what you need to do, IMHO:

     First, the regulation:  https://www.law.cornell.edu/cfr/text/38/3.156  In relevant part, it says: 

 

Quote

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.

 In "my opinion" you can wait on the HLR, but its unlikely to be productive.  I think you need to get this to the BVA.  If the HLR is denied, then appeal the HLR to the BVA, arguing 38 CFR 3.156 C.  

    While this method should be your winner winner chicken dinner, there are other methods, too, if VA tries to weasel on that one.  Effective date law is complex enough that not all attorney's even do EEDs.  Others LOVE them.  Winning may ultimately need an attorney, but you probably dont need one, yet.  (However, I have seen the argument, too, that getting your attorney sooner is better than later, because, Vets sometimes make mistakes that the attorney can not fix.)       

     My advice:  Either "Wait for the HLR" or just appeal to the Board, now.  Waiting for the HLR decision is the most likely to be productive.  Also possible:  File CUE, but Berta is our Cue expert.  So I wont opine if this is Cue or not.  

 

[Berta]

Can you scan and attach here the 2018 denial- to include their rationale and the Evidence list?

Cover your C file # , name, address, prior to scanning it .

You said:

"April 2013: (During Service) I was taken to the emergency room for headaches and nausea where CT scans were taken. This occurred during training on active duty."

Do you have a copy of your SMRs?

You also said:

"October 20,2020: Opened claim for headaches again (no new evidence, and didnt know a supplemental was needed) However, somehow I was granted a C&P exam. During the C&P exam with a VES Neurologist, he was able to pin point the incident that occurred in 2013 during Active Duty where I was sent to the ER for headaches. He confirmed it was service connected."

I think that is why they used the  October 20, 2020 date, as the EED.

Basically they are saying that was the first date ( the C & P examiner's opinion) that they were aware of the inservice connection.

Was this the only C & P exam you got from VA on the migraines?

This might be a CUE if the VA had your complete SMRs, when they denied as a violation of 38 CFR 4.6.

 

"Nov 6,2020: VA received my HLR for effective date change."

Good-the HRLs are trained to seek CUEs,but we cannot depend on that.

My decision letter from 2018 states:

"Service connection for headaches is denied since this condition neither occurred in nor was caused by service."

Did you in any way, on the original claim ,referthem to the inservice medical evidence.

This is 38 CFR 4.6- 
 

 

[Berta]

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6"

I got them with this regulation Many times when they either completely ignored my evidence and did not list it as Evidence in the decision, and also when they DID list it but never "considered" it. 

But the problem with that ,in your case is- the raters are not doctors. Something like this would have been granted long ago with a strong IMO/IME, that established the inservice nexus for you ,within the appeal period ,the way the C & P Neuro did.

A good IMO/IME doctor ( I would have used Dr. Bash, a Neuro- Radiologist for this type of claim) as I did for my AO DMII death claim,and he fully knocked down two VA Endocrinology opinions that went against that claim, because he understood what the CTs, X rays, and autopsy of my husband revealed.

Ihave an article here on what IMO/IMEs need. The doctor needs the cmplete SMRS , in cases likeyour, and all VA and private records.

Did you have any private medical records for the Migraine claim?

If so did the VA know that and obtain them?

VA could have read the SMR entry but could not associate it with your current disability.They do not have the medical expeertise to determine a link.

Then again maybe the VA didn't even read that entry.

If this was the only C & P exam you had, that might open another door for you.....

might---but that depends on VA rationale,i a decision,  why they did not give you a C & P exam sooner.

I have an article here called The Power of 38 CFR 4.6-  maybe it will help you.

https://hadit.com/power-38-cfr-4-6/

If HRL does not see the CUE, if I were you I would hold onto some of the retro to obtain an IMO/IME ,if this goes to the BVA.

Any claim, once it is docketed at the BVA, can be supplemented with additional evidence. 

As I understand it, the HLR depends on only the established evidence.

We can help more if we see that 2018 decision and evidence list.

Did you receive a 5103 waiver? If so did you respond to it with any evidence?

 

 

Edited November 18, 2020 by Berta
added more

[Miken2c74]

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