supplemental claim for increase of migraine rating denied

[mwillis71]

I was awarded service connection secondary to sleep apnea for migraines. They gave me a 0% rating which was complete bullshit so i submitted a supplemental with a lay statement from myself  and my wife explaining that my migraines happen on average 4 times a month and are prostrating in nature. I also added a list of workdays missed and other days that I had prostrating migraines. I figured this would be enough because they never even asked me to describe my migraines at my c&p exam in the first place. Well, the cocky bastards continued my rating at 0% stating that there was no new evidence added to the original c&p findings which were garbage to begin with. I am now in the process of having my private medical professional do a writeup of my symptoms, frequencies, severity and likely cause of the migraines. My VSO thinks that I should go straight for a judicial review but can't I just submit another supplemental claim with the new evidence? What would you all suggest?

[Dustoff1970]

You cannot go straight to judicial review that would be the U.S. Court of Veterans Appeals from a VARO denial.  You have to wait until the BVA appeal is a final denial then you can appeal to the CAVC court.

You can submit new and material evidence along the way before then and/or directly to the Board (BVA) if you decide to appeal.  The CAVC court rules will not allow any new and material evidence however I did send new and material evidence to them in 2003 and won my CUE claim with their remand instructions ordering the VARO to adjudicate my TDIU claim that resulted in award of P&T TDIU with back pay of 5 years.  They said this was not CUE but I still got what I wanted.

Never close off your options to submit new and material evidence to the VARO or Board.  HLR request does not allow for new and material evidence ???? .  Supplemental claim allows for new and material evidence.

This comment is not legal advice as I am not a lawyer, paralegal or VSO representative. 

[asdf]

Keep it simple. If you have the supporting documents for a supplemental claim, then just file a 995.  Don't fall into the hype for a BVA hearing, they take forever and you get the same result with solid evidence.

[Dustoff1970]

In 30 plus years of handling my own claims, BVA and Court appeals successfully I have never requested a board or VARO personal hearing as not necessary and for me a total waste of time and I did not want to deal with an indifferent could care less VSO. Also adds a great deal time to your BVA appeal before a decision.  But for some it adds to the drama of a hearing with a real live BVA judge.

I have read and heard they use trick questions and even try to read your body language to see if you are truthful in your answers and of course they can make mistakes.

This comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

[Vync]

You posted this with a topic indicating you requested an increase. Are you certain that they deemed you service-connected and simultaneously rated at 0%? I have talked with others who thought they were SC when they saw 0%, but actually were not.

Would you consider posting the reasons and bases section from the decision with any personal or sensitive information redacted? It would be helpful to understand the VA's supposed reasons to rate it at 0%.

Check the evidence listing and reasons and bases section in the decision to confirm that they considered your lay statements and any buddy letters.

 

If the doc deemed you as service-connected for migraines, even if their notes are marked at 0%, the VA is still required under 38 CFR 4.6 to look at all the evidence which includes your lay statements and buddy letters.

Here are the VA's inadequate C&P exam policies where they should send them back to be reworked or clarified:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000180517/M21-1,-Part-IV,-Subpart-i,-Chapter-3,-Section-C---Insufficient-Examinations

If a reasonable person reads the lay statements/buddy letters from you and your wife that clearly state the number of times per month and prostrating nature, they should have rated you based solely on those sworn statements.

[mwillis71]

20220310_071122.pdf

So from the looks of it, they didn't even look at my lay statements, my missed work logs or my daily health tracker. So I'm thinking that these geniuses lost half of my papers and just assumed that I was a moron and submitted a supplemental claim with now new evidence. Seriously? I am a high school teacher with a Master's degree! I'm not that stupid! I had everything neatly organized and put into a nice folder for them. I used a clip instead of stapling the papers all together. I guess that is where I messed up. wtf

Edited March 10, 2022 by mwillis71

[Vync]

@mwillis71You're definitely service-connected for headaches at 0%. Glad they at least got that right.

The evidence list typically comes before the reasons for the decision and often will say something like "all evidence of record" and is supposed to list out the key documents used to grant or deny. 

This looks like what would be called a rubber stamp decision. The only evidence they indicated here is the VA exam. I would assume the meatier portion of the decision and evidence list would be in the initial decision letter.

 

After thinking about this, a few things stand out:

1. Your initial SC effective date is typically when you initially filed.

2. Winning an increase would only take you back to the earlier of the date you were SC or the date your evidence show you qualified for the increase, as long as both are within 12 months per 38 CFR 3.400: https://www.law.cornell.edu/cfr/text/38/3.400

It sounds like the VA may have made an error in the initial decision by failing to factor in your evidence when determining the rating percentage, but you already know that. If you can get the VA to correct the error in the initial rating, the percentage could perhaps go back to the SC effective date.

I was curious about the evidence they considered because it is often a key factor in clear and unmistakable error (CUE).  The CUE laws, regs, and three pronged test are described exhaustively here in other topics. Basically, it's like an HLR but can be reviewed and corrected via a supplemental, HLR, BVA, CAVC, etc... CUE can be filed without any time limit and does not require any special form. However, if you decide to ask the VA to CUE themselves, it would not hurt to send in a separate supplemental form along with it just because the VA has become form happy and sometimes lost without it. I'm not saying you have a provable CUE, but I was in a very similar situation years ago. The VA granted an initial rating, but decided to reduce it by 10%. My VSO told me to just be happy and not do anything. Years later I learned more about CUE and did research. I showed them that the reduction was improper because they failed to follow laws and regulations which were in effect at the time the decision was made. It was a pretty simple explanation. Here's the error I allege was made by the VA. Here's the relevant evidence. Here's the relevant laws/regs. Here's how the VA failed to follow the laws/regs. One key factor of CUE is it cannot be a judgement decision. In your case, you're already SC, so that's in the bag and it doesn't appear a judgement decision would apply. It would take a reasonable person to look at your evidence and plainly read the number of migraines per month and look for the term "prostrating". They would then go over to the migraine rating criteria and assign the rating based on the plainly read evidence.
  I sent in my CUE letter along with a supplemental form. All the VA needs to do is just verify the evidence and determine if errors were made in applying the laws/regs. They granted my CUE request. Because of the potential for CUE, that's why I recommended looking back at the evidence and reasons in each decision. If you decide to take the CUE route, be very clear and explain the errors which were made. Given your teaching job, I'd recommend writing it at the 8th grade level.