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Whodat

Question

I know that this is a site for education only and I really do need to be educated a lot on claims procedures. Lots of you all have been a great help to me and I thank you all. Most of you are better help than my attorney.

This is what's going on and I am aware that I have went about it the wrong way and now I am trying to clean it up.

1. I filed a claim in 2018 for migraines secondary to tinnitus and other service connected conditions. I know now that I should have filed for headaches.

2. C&P exam completed 2019. Examiner stated tinnitus don't cause migraines. Did an HLR had another exam in 2020. Came back with a DTA, another exam was ordered. 2021 denied.

3. Assuming that my attorney appealed that decision, that didn't happen.

4. I have now lost my eed but it's ok.

Now I want to readdress this issue but uncertain on how.

If I file a new claim for headaches, VA will kick it back and probably say that I have open a claim for headaches and I need to do a supplemental which isn't true. I opened up a claim for migraines.

This is where I am lost.

Now my thoughts which I have the proof of a bad exam. Do I open up a supplemental claim for migraines and challenge my last exam?

Thank you all.

Merry Christmas 🎄

 

 

 

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13 hours ago, Whodat said:

I know that this is a site for education only and I really do need to be educated a lot on claims procedures. Lots of you all have been a great help to me and I thank you all. Most of you are better help than my attorney.

This is what's going on and I am aware that I have went about it the wrong way and now I am trying to clean it up.

1. I filed a claim in 2018 for migraines secondary to tinnitus and other service-connected conditions. I know now that I should have filed for headaches.

2. C&P exam completed 2019. Examiner stated tinnitus don't cause migraines. Did an HLR had another exam in 2020. Came back with a DTA, another exam was ordered. 2021 denied.

 

12 hours ago, Whodat said:

I do have favorable findings such as vehicle rollover, explosion etc. while in service. I do have CT scans of the head shows what could cause my headaches.

It is always the veteran’s choice of how he/she should proceed, and it depends on where the decision comes from. I say this because if the VARO denied your claim, you the veteran can file an appeal/supplemental to the BVA. An attorney is not needed until the claim goes to the CAVC. You also posted in another post that you do have favorable findings (if this is a medical opinion) then you should file an appeal. You also stated that you had a decision in 2021, if this decision is/was less than a year’s time this is also a reason to file an appeal.

Always keep in mind that in relative equipoise (the balance of positive and negative evidence) the veteran wins his/her decision. No one likes going the appeal route, but this may be the better way to fight. If your claim was denied at the VARO, then appeal to the BVA and if your claim was denied at the BVA then appeal to the CAVC.

In reference to symptoms V. diagnosis try searching for Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)

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

(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).

Side note: Had the VARO deny my claim and I filed an appeal to the BVA where they remanded my claim to get the VARO to correct their decision, but the VARO denied my claim and then the BVA denied my claim on return. I then filed an appeal to the CAVC, and they did a joint remand and the BVA then granted my claim that they just denied, and I was awarded direct service connection.

 

Edited by pacmanx1
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Headaches are all lumped under 1 category for exam purposes.

Are you claiming secondary to SC Migraines (specifically) or just headaches? Claim secondary to what you are already SC for and use the words that you are rated for. Don't play doctor, or pull up Web Med and try to self diagnose. It feels like you are strengthening your claim by trying to use the medical sounding words ( I know, ive done this back in the day, and I ended up having to appeal later) but really you aren't. Use your regular words for it, and only get technical if you know its written in your records that way.

VBMS takes your contention/claim, and barring some misspelling, etc, or combining of two conditions into "bilateral" to save space, that wording is what goes on the exam request, and that exam request is the question/s the examiner has to answer. If you claim something secondary to "X" specifically, but you don't have a DX for "X", well, the examiner answers the question with "No dx for "X" because that is what they are legally obligated to answer. 

 

https://www.va.gov/vetapp21/files2/a21002562.txt  -granted

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4637068/ -Scroll most of the way to the bottom, or CTRL-F search for "Summary".

 

Granted, you weren't part of THIS study, so you can't cite it directly but you CAN point your doctor at it for saying "hey, this is plausible, right? I have tinnitus, and headaches, could they be connected?" If you phrase it something like that rather than marching in and saying " I want you to write an opinion about my headaches and tinnitus for a disability claim..." Your doctor may run screaming out the door. Lots of practice docs don't like to get involved in the disability process very much- they are afraid you'll sue, or something, and its their license on the line making the opinion. But, if you ask about it in the course of an exam and get them to DOCUMENT that it is a cause for concern, you talked about it, and whatnot, that kinda forces them to write something into their record about your complaint/why you were there, and a summary of what they think (usually). 

 

 

Here is the current DBQ for migraines/headaches. (attached) so you know what the most recent one looks like.  Your doctor can fill this out, too, its not a difficult form. Make sure they and you make note of how many time/s a month you are prostrating (have to lay down) and the duration, and if there is dizziness, or light sensitivity, smell, sound sensitivity etc. They also need to include something separate from this that says why they think your tinnitus and headaches are connected (study a, study b, neurology tests, whatever). The second part can be on letterhead from them. This is the 'rationale' portion you hear a lot about. 

 

 

Headaches_Including_Migraines.pdf

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I was actually diagnosed with migraines. Listening to barracks lawyers, was to claim it as a secondary being that I was not diagnosed while in or 1 year after service.

A Neurologist actually diagnosed me.

Claimed it secondary to tinnitus and other service connected conditions. Of course denial. I understand I should have kept it simple and say headaches. Now all of that is in past.

I do have favorable findings such as vehicle rollover, explosion etc while in service. I do have CT scans of the head shows what could cause my headaches.

My issue is now that VA will not consider headaches, just migraines from my previous claim. Last time I checked, migraines are headaches. But I didn't say headaches just like my medical records don't say headaches. It says migraines.

When the VA found the DTA, I was sent to another c&p exam. Now this examiner said I didn't have migraines, I have clusters.

All I want to do is open this claim right without going around the hamster wheel because VA is being picky on what verbage is being used. A headache is a headache. Migraine, a headache, cluster, a headache, sinus pressure, a headache.

 

 

 

 

 

 

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And to add to this, I have requested of a copy of the DBQ but never received it. Being that the second exam was a NP contractor, I am definitely going to question that exam. 

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I am not sc for headaches.  

Filed for tbi but was denied as well. Denied because of no diagnosis or treatment.  My medical records following my vehicle rollover showed no report or injury to head.  I can't win that one.  

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