Question:
JIM, I was recently awarded 3/2020, a 50% rating for Migraine headaches that I have had since a head injury during my time in the Navy 1992 (in USN 1990-1994). I submitted a claim for Migraines in 1995 and received a rejection of my claim. I never received my claim rejection back in 1995 submitted by my VSO 7/25/1995. Only recently did my current VSO find it and bring it to my attention 3/12/2020. The decision stated as follows: “DECISION: - Evaluation of head injury residuals with headaches, which is currently 10 % continued. REASONS AND BASES: “The evaluation of head injury residuals with headaches is continued as 10 percent disabling. An evaluation of 10 percent is granted for mild impairment of social and industrial adaptability, or for symptoms associated with brain trauma. A higher evaluation of 30 percent is no warranted unless evidence demonstrates a definite impairment of social and industrial adaptability. Purely subjective complaints such as headaches, dizziness, insomnia, etc. recognized as symptomatic of brain trauma, will be rated at 10% and no more under diagnostic code 9304. Hospital report from VAMC Boston reveals the veteran was admitted 10-12-95, for further evaluation and management. The veteran described classical symptoms of migraine symptoms. On admission the veteran was in no active distress with stable vital signs. Pupils were equally reactive to light. MRA and MRA of the brain was taken showing no intercranial abnormality, specifically there was no evidence of intercranial mass, mass effect, edema, or hemorrhage or abnormal protein density or T2 signal change. There were no localized areas of brain destruction identified. The angiogram of the brain appeared normal. There was no evidence of intercranial aneurysm of the AVM. There was mild mucosal thickening of the maxillary sinus antra bilaterally.”
There is clear diagnosis in my Naval Medical record from 1992-1994, with a few instances stating, "Classical Migraine" as my diagnosis from a Naval Neurologist, who came to this conclusion. The migraines I still experience 3-4 times monthly is the main reason I get treated by the VA.
Do I have any recourse for retro-pay with my recent decision to go back to 1995? As I stated, there are clear medical documents from my Naval Medical record referencing migraines, but it seems as if those documents were never considered in my 1995 claim. Furthermore, I never received any decision from the VA, so I never was given the opportunity to appeal. Any suggestions for a direction I can take for a higher-level review or appeal to get a 1995 effective date? Your help would be greatly appreciated.
Jim's Reply:
In broad terms retro pay is limited to very well defined circumstances, usually to the original date of filing. When we file a claim and are denied, we must timely appeal (within one year) or the claim is closed permanently. Your message is confusing since you tell me, "in 1995 and received a rejection of my claim. I never received my claim rejection back in 1995".
So did you or didn't you get the denial? Not that it matters.
While you say that you never received a denial of your claim, VA will say they mailed it to you. The fact is that the decision of who did what will always be in favor of VA if they say they mailed a document. Unless you can prove that VA did not mail you a letter of denial, you have no case.
That you say there was a letter in a record but your VSO didn't deliver it is also unusual but not unheard of so VA would have sent a copy to the VSO record and a copy to you.
In fact...if you submitted a claim in 1995 and didn't wonder why they never responded, that's kind of curious? How is it you missed that there was no response at all? We have a responsibility to keep up with what's going on in our lives and I'm struggling to figure out how you just forgot about it?
The record I see does not say you were diagnosed with a migraine. It says, "The veteran described classical symptoms of migraine symptoms", "no intercranial abnormality", "The angiogram of the brain appeared normal", and that "the veteran was in no active distress with stable vital signs".
The record indicates you told them you had a headache but otherwise seemed fine with no evidence of disease. That is not the same as being diagnosed with a migraine and that's why you were denied then.
In the final analysis if you bothered trying to get money out of them today, VA would likely tell you that the rating decision you didn't receive was the correct decision in any case as you were left at 10% then which was the appropriate rating at that time.
Since then your condition has worsened and you are now properly compensated at 50% because you (presumably) filed the latest claim. Had you kept your claim alive with an appropriate and timely appeal back then, you may have won a higher rating then or maybe not. This is how the system works.
There is no reason to believe you are owed any retro pay.