Under Administrative Review

[Scout Swimmer]

I was denied recently on a depression claim. I noticed on the denial letter that they based the decision on direct service connection. I am 40% TBI with 50% mixed headaches as a secondary. I assumed it would be automatically rated as a secondary condition to my TBI as my submitted medical evidence clearly state in my progress reports.

I immediately submitted a letter of reconsideration to rate my claim as secondary to TBI, as my DAV rep advised. I am now under Administrative Review.

I'm still not clear on how long this process takes, or what it exactly is. I called Peggy and she informed me that it has nothing to do with my claim and it is closed. I didnt get much out of her as she was unwilling and a bit hostile. I am considering retaining an Attorney but should I wait and see where this goes? Is this a thing that could last a year forfit my right to appeal?

Any suggestions would help

Thanks

[Scout Swimmer]

I don't have new evidence. The reason I did the reconsideration is because they denied me based on not diagnosed with depression while in military service (direct connection). My claim was based on it being a secondary to my rated TBI. My POA talked to the rater about it. He told me to do the reconsideration to change the type of claim to specifically state "secondary", which has now been done. My POA told me it was mishandled badly and he didn't think I need more evidence to be rated. We will see.

Edited March 7, 2014 by Philgrenier

[GatorNavy]

Phil

Pardon me, trying to understand. Was your MDD diagnosed secondary to the TBI in your Service Medical Records? If so, it sounds like they ignored those records. Then maybe you should make a copy of the SMR pages that state such and talk to your VSO about sending that in (again?). If no such diagnoses in service exists, then you will need either a neurologist or a psychiatrist to give nexus with an opinion (IMO) that the MDD is secondary to the TBI. Berta, Carlie, Asknod can give you direction on what a good IMO should look like with the wording and legal jargon. Asknod has a very good chapter about it in his book or you can go to his website and look at his "Nexus Bible". It's frustrating when you are ill and don't know much about the process. You expect a VSO to pickup the point and then things go wrong. I think most of us have been there before, hence the existence of this forum.

http://asknod.wordpress.com/6051-2/

edit: my keyboard died before I could finish. The 60,ooo dollar question seems to be is your progress notes (VA VISTA?) enough to prompt a C&P exam?

Edited March 7, 2014 by GatorNavy

[GatorNavy]

https://www.federalregister.gov/articles/2013/12/17/2013-29911/secondary-service-connection-for-diagnosable-illnesses-associated-with-traumatic-brain-injury

http://www.gpo.gov/fdsys/pkg/FR-2013-12-17/pdf/2013-29911.pdf

Edited March 7, 2014 by GatorNavy

[Scout Swimmer]

Gator, in my progress notes it states numerous times that my depression is caused by my service connected TBI.

As far as my service medical records from when I was actually on active duty, I was never seen for depression. I did what all grunts do. Sucked everything up and moved on.

[GatorNavy]

The links I provided are relatively new. I didn't find out about them until this morning. Hopefully your VSO knows. The new criteria to meet is contained in the PDF at the Federal Registry but is now located: http://www.regulations.gov . The new adjudication rules for TBI went into effect around 16 January 2014:

FOR IMMEDIATE RELEASE

December 16, 2013

VA to Expand Benefits for Traumatic Brain Injury

Adds Five Illnesses Related to Service-Connected TBI

WASHINGTON – Some Veterans with traumatic brain injury (TBI) who are diagnosed with any of five other ailments will have an easier path to receive additional disability pay under new regulations developed by the Department of Veterans Affairs. The new regulation, which takes effect 30 days from today, impacts some Veterans living with TBI who also have Parkinson’s disease, certain types of dementia, depression, unprovoked seizures or certain diseases of the hypothalamus and pituitary glands. “We decide Veterans’ disability claims based on the best science available,” said Secretary of Veterans Affairs Eric K. Shinseki. “As scientific knowledge advances, VA will expand its programs to ensure Veterans receive the care and benefits they’ve earned and deserve.” This regulation stems from a report of the National Academy of Sciences, Institute of Medicine (IOM) regarding the association between TBI and the five diagnosable illnesses. The IOM report, Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury, found “sufficient evidence” to link moderate or severe levels of TBI with the five ailments.

The new regulations, printed in the Federal Register, say that if certain Veterans with service-connected TBI also have one of the five illnesses, then the second illness will also be considered as service connected for the calculation of VA disability compensation.

Eligibility for expanded benefits will depend upon the severity of the TBI and the time between the injury causing the TBI and the onset of the second illness. However, Veterans can still file a claim to establish direct service-connection for these ailments even if they do not meet the time and severity standards in the new regulation. Veterans who have questions or who wish to file new disability claims may use the eBenefits website, available at www.eBenefits.va.gov/ebenefits. Servicemembers who are within 180 days of discharge may also file a pre-discharge claim for TBI online through the VA-DoD eBenefits portal at www.eBenefits.va.gov/ebenefits. The published final rule will be available Dec. 17 at http://www.regulations.gov. Information about VA and DoD programs for brain injury and related research is available at www.dvbic.org.

Information about VA's programs for Gulf War Veterans is available at www.publichealth.va.gov/exposures/gulfwar/hazardous_exposures.asp.

[GatorNavy]

Here is the adjudication rule in detail:

Part 3 Adjudication

1. The authority citation for part 3, subpart A continues to read as follows:

Authority:

38 U.S.C. 501(a), unless otherwise noted.

2. Amend § 3.310 by adding paragraph (d), to read as follows:

§ 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

* * * * *

(d) Traumatic brain injury. (1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary:

(i) Parkinsonism, including Parkinson's disease, following moderate or severe TBI;

(ii) Unprovoked seizures following moderate or severe TBI;

(iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;

(iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or

(v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.

(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1).

(3)(i) For purposes of this section VA will use the following table for determining the severity of a TBI:

Mild Moderate Severe Normal structural imaging Normal or abnormal structural imaging Normal or abnormal structural imaging. LOC = 0-30 min LOC > 30 min and < 24 hours LOC > 24 hrs. AOC = a moment up to 24 hrs AOC > 24 hours. Severity based on other criteria. PTA = 0-1 day PTA > 1 and < 7 days PTA > 7 days. GCS = 13-15 GCS = 9-12 GCS = 3-8.

Note:

The factors considered are:

Structural imaging of the brain.

LOC—Loss of consciousness.

AOC—Alteration of consciousness/mental state.

PTA—Post-traumatic amnesia.

GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)

(ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels.

http://www.regulations.gov/#!documentDetail;D=VA-2012-VBA-0029-0212

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Edited March 7, 2014 by GatorNavy