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Claim denial and cue help

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disascottc

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Good morning need some help with trying to figure out whether or not there is a Cue in original claim my husband filed. 
claim was started 2013 June was when it was submitted decision April 2014. 
 

2013, April seen for headaches imaging done. June 2013 separation physical states H/o headaches and medication prescribed for headaches. 
actual separation July 6,2013. Right after returning home within a week, was seen by new primary care VA doctor and ongoing for the duration of claim was seen multiple times for headaches and medication.  VA claim for headaches was denied reason stating.;

although there is a record of treatment in service for migraine headaches, no permanent residual chronic disability subject to service connection is shown by the service medical records, or demonstrated by evidence following service there for service connection for migraine headaches is denied. 

also, in a listed evidence used to determine these decisions VAMC records are not listed

My husband was handling his claims alone, and wasn’t aware of how the process worked for not agreeing with the decision. This year we went out again and submitted a supplemental claim for headaches. The added evidence was My lay  statement as well as his C&p exam and the remainder of time since denial of VA medical records. And were approved service connection, but we are trying to Achieve an earlier effective date. We are pending c file request and don’t know what actually got considered and what didn’t please help don’t know if this is a cue  thank you 

Edited by disascottc
Correction of spelling
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Clemons already takes care of the problem.

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 

Clemons v. Shinseki, 23 Vet. App. 1 – CourtListener.com

Edited by pacmanx1

My intentions are to help, my advice maybe wrong, be your own advocate and know what is in your C-File and the 38 CFR that governs your disabilities and conditions.

Do your own homework. No one knows the veteran’s symptoms like the veteran. Never Give Up.

I do not give my consent for anyone to view my personal VA records.

 

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12 minutes ago, Mr cue said:

I really think this be the problem I feel veterans should just apply for just headaches.  Not Tension headaches migraines etc 

Same for mental health.

To many conditions. Depression  PTSD etc 

I apply for mental health an let the VA call it what ever they feel. I had evidence.

I would do the same for headaches an let them address the evidence.

 

I think you may be onto something, allow the VA to figure it out and especially with headaches it's all rated the same to my understanding. I am working on a claim for headaches and my plan is to file for straight up headaches and focus more on the symptoms. 

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4 hours ago, pacmanx1 said:

Clemons already takes care of the problem.

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 

Clemons v. Shinseki, 23 Vet. App. 1 – CourtListener.com

True, if the vlj, or staff attorneys actually review your appeal.

Presidential decisions mean nothing if the court doesn’t take the time and do what they are supposed to be doing.

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On 9/26/2022 at 11:39 AM, disascottc said:

Good morning need some help with trying to figure out whether or not there is a Cue in original claim my husband filed. 
claim was started 2013 June was when it was submitted decision April 2014. 
 

2013, April seen for headaches imaging done. June 2013 separation physical states H/o headaches and medication prescribed for headaches. 
actual separation July 6,2013. Right after returning home within a week, was seen by new primary care VA doctor and ongoing for the duration of claim was seen multiple times for headaches and medication.  VA claim for headaches was denied reason stating.;

although there is a record of treatment in service for migraine headaches, no permanent residual chronic disability subject to service connection is shown by the service medical records, or demonstrated by evidence following service there for service connection for migraine headaches is denied. 

also, in a listed evidence used to determine these decisions VAMC records are not listed

My husband was handling his claims alone, and wasn’t aware of how the process worked for not agreeing with the decision. This year we went out again and submitted a supplemental claim for headaches. The added evidence was My lay  statement as well as his C&p exam and the remainder of time since denial of VA medical records. And were approved service connection, but we are trying to Achieve an earlier effective date. We are pending c file request and don’t know what actually got considered and what didn’t please help don’t know if this is a cue  thank you 

If you appealed to within a year after denial then granted, your initial claim stream and effective date should have been the date.

If you appealed after a year and was granted sc, then your effective date is when you submitted supplemental appeal.

 

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Just now, Stayfocus said:

If you appealed to within a year after denial then granted, your initial claim stream and effective date should have been the date.

If you appealed after a year and was granted sc, then your effective date is when you submitted supplemental appeal.

 

I’m not an attorney but this doesn’t seem like a cue…maybe 38CFR 3.156(b) or 3.156(c)

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I think that is incorrect. The point of filing after a year is\can be documentation. I'm fighting this now w/ the VA

I filed a claim in Oct 2014 for SC for RT foot Arthritis due to jump requal injury. March 2015, VA said, you had injury but not disability, even though I had multiple medical visits due to damage to both feet. Said it wasn't service connect.

I filed a supplemental claim Jan 2017, and included the copy of my TAD orders, which they did not have, did not search for even though they are supposed to have a duty to assist. was granted SC, but effective date was date of supplemental claim. I found in 38CFR, that official documentation (TAD orders) were cause for the change of original date of claim.

So now that sits before the BVA, pending 25 months of 20% in backpay and correction of date of award.

I filed a CUE, but the VA doesn't have a duty to assist and IMO, a waste of time and effort., and was denied.

File your NOD or Supplemental claim, and review the 38 CFR for the documentation needed to get the change of date.

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