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

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38 CFR Book B 3.310 mandates secondary service connection for certain disabilities associated with traumatic Brain Injuries (TBI)

I have a couple of QUESTIONs since my MDD rating is still in limbo at the VARO:

  1. What does it mean by "...the secondary condition shall be considered a part of the original condition….”
  2. Does that mean MDD is to be rated separately as secondary service connected to TBI?
  3. OR,does that mean that MMD cannot be rated separately from TBI and receives just ONE rating?
  4. How can secondary service connected disabilities avoid the "pyramiding" accusation?

 

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

 (a)    General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

 (b)   Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131)

 (c) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.

 (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. (Authority: 38 U.S.C. 501, 1110 and 1131)

[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013]

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Still waiting on my appeal +5-1/2yr and counting.  Looks like "... the Board is generally distributing cases to Veterans Law Judges for adjudication with docket dates up to June 2015..." and mine was filed May2016, so maybe in another year...

Looking at other records to show SC for my Major Depressive Disorder (MDD).  In my C-file I found a clinical record/consultation Sheet where my Ship's Doctor requested a Neural Psychiatric evaluation for me off ship. My Ship's Doctor noted:

“…20 yo WM with severe adjustment problems to Navy, absolutely
refuses to cooperate with peers or officers. (‘that’s just the
way I am.’) Please evaluate, make recommendations for disposition.

signed R. Martin, M.D.…”

My QUESTION:  Doesn't the above quotation, "severe adjustment problems" constitute a valid diagnosis under §4.130 Schedule of ratings—mental disorders "...9440 Chronic adjustment disorder..." since it was diagnosed/signed by the Ship's Doctor?

In my Disability Rating Letter,  "...The examiner stated that you also have a diagnosis of depression which may also cause changes in cognitive function, but because of the considerable overlap of
symptoms between TBI and depression, it is not possible to determine if the cognitive symptoms are specifically related to either TBI or depression without use of mere speculation. The issue of
depression is currently on appeal and will be addressed at a later date by the Appeal team..."
and "...This is a partial grant of benefits sought on Appeal..."

I also attached a copy of  §3.310—Disabilities that are proximately due to, or aggravated by, service-connected disease or injury  because it clarifies that Depression shall be considered a secondary SC disability/condition.  

Isn't this a slam-dunk?  Is the VARO just jacking me around or is there actually more to it than that?

 

s3_310 Disabilities that are Secondary Service Connected to Original Disability.pdf

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    Given what you posted, I would have to agree its a slam dunk, but its always best to not underestimate your opponent, or overestimate your own poker hand.  

    I take it you have reviewed your own file, and made sure everything else is in place.  Im sure you know that a secondary nexus needs but 2 elements, since the primary established the "in service event or aggravation":

    1.  Current diagnosis of MDD (and TBI).  

    2.  Your doctors nexus, that your MDD is "at least as likely as not secondary to your TBI".  

    As far as the mandantory MDD secondary to TBI, remember that does not establish a disability percentage, that is, your MDD could be at 0 percent, which wouldnt help you.   

     I think the bit about the secondary part of the primary is for the purposes of "seperate and distinct" criteria for statuatory SMC S...it means that the primary and secondary are NOT seperate and distinct from each other.  In other words, a rating for MDD is not "seprate and distinct" from your TBI.  That is, you wont be getting statuatory SMC S out of this.  

     As far as the pyramiding being prohibited, this is in reference to symptoms for different diagnosis.  Refer to the criteria for mental health disorders, which are lumped into one.  Let me explain with an example:  Lets say you have "total occupational Impairment" because you have symptoms of repeatedly getting into arguements with supervisors.  Well, you wont be compensated for THIS symptom in both TBI and depression...at least this is the way I interpret it. 

      My advice is to not overthink your case.  Do the best job you can when you apply...update if needed, but you need to simply wait for the envelope.  While waiting I like to make a plan for each of the following senarios:

      1.  Denial.  Here I would be thinking about an attorney for the CAVC, if you dont have one anymore.  

       2.  Award.  You can estimate the retro, and plan out what you want to do with the money.  

       At this point, if you have given VA all the information they requested, and provided all the evidence, then you need to simply wait for the envelope.  

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1 hour ago, broncovet said:

Given what you posted, I would have to agree its a slam dunk, but its always best to not underestimate your opponent, or overestimate your own poker hand.  

    I take it you have reviewed your own file, and made sure everything else is in place.  Im sure you know that a secondary nexus needs but 2 elements, since the primary established the "in service event or aggravation":

    1.  Current diagnosis of MDD (and TBI).  

    2.  Your doctors nexus, that your MDD is "at least as likely as not secondary to your TBI".  

    As far as the mandantory MDD secondary to TBI, remember that does not establish a disability percentage, that is, your MDD could be at 0 percent, which wouldnt help you.   

     I think the bit about the secondary part of the primary is for the purposes of "seperate and distinct" criteria for statuatory SMC S...it means that the primary and secondary are NOT seperate and distinct from each other.  In other words, a rating for MDD is not "seprate and distinct" from your TBI.  That is, you wont be getting statuatory SMC S out of this.  

     As far as the pyramiding being prohibited, this is in reference to symptoms for different diagnosis.  Refer to the criteria for mental health disorders, which are lumped into one.  Let me explain with an example:  Lets say you have "total occupational Impairment" because you have symptoms of repeatedly getting into arguements with supervisors.  Well, you wont be compensated for THIS symptom in both TBI and depression...at least this is the way I interpret it. 

      My advice is to not overthink your case.  Do the best job you can when you apply...update if needed, but you need to simply wait for the envelope.  While waiting I like to make a plan for each of the following senarios:

      1.  Denial.  Here I would be thinking about an attorney for the CAVC, if you dont have one anymore.  

       2.  Award.  You can estimate the retro, and plan out what you want to do with the money.  

       At this point, if you have given VA all the information they requested, and provided all the evidence, then you need to simply wait for the envelope.  

Thinking out loud Brocovet, so how does this sound?

You bring up a good point about "separate and distinct".  As I gather, it would/will be best to argue that my MDD stand on its own as a disability and NOT Secondary to TBI.  I have not spoken with my lawyer (Adam Luck, which you know) for over a year or more, but I am now beginning to understand that he may be suggesting something similar.  Look at my attached (below) "disabilities" from ebenefits, where it currently shows MMD "not serviced connected".  It has been listed by the VARO as a stand alone disability and NOT secondary to anything. 

QUESTION: Would or could it be important that my  "severe adjustment problems" diagnosis occurred six (6) months after my TBI and thus has a distinct/different etiology:

  • My "severe adjustment problems" diagnosis/note from my ship's doctor makes absolutely NO reference to my earlier TBI in any way... thus IMO separate and distinct. 
  • After all, looking at all the disabilities ratings criteria, we constantly see things like "one or more of..." then a list of multiple choices.  Surely the VARO/BVA understands that THAT shopping list does NOT mean that a particular veteran has ALL items in any particular rating category of symptoms. 
  • This is where I think that the VARO goes off-task inferring that if I have disability A. in a category that has/includes "One or more of, A.B.C.D.E. and F."  listed, then they want to insist that any diagnosis that has B.C.D.E. and F. cannot be used elsewhere, because of an existing diagnosis A.

QUESTION: Does the "Medical Description" (seeing rating letter below) limit what is considered duplicative or overlapping "symptomatology" in my TDIU determination?

 

______________

FROM a 2017 BVA Decision (I found this while researching recent rulings):

Citation Nr: 1736081
Decision Date: 08/30/17 Archive Date: 09/06/17
DOCKET NO. 13-25 163 ) DATE ) )
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

"...Rather, Diagnostic Code 8045 provides explicit instruction as to rating only "purely neurological disabilities" and "purely subjective complaints" associated with trauma to the brain. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). A diagnosed mental disorder, such as major depressive disorder or anxiety disorder, is neither a neurological disability nor a subjective complaint under the rating schedule; it is a separate disability. In this regard, the Board reiterates that separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See 38 C.F.R. § 4.14 (2016); Esteban, 6 Vet. App. at 261-62..."

_______________

and

MY RATING DECISION LETTER EXCERPTS Below:

What We Decided
If this account is no longer open, please notify us immediately.
We determined that the following service connected condition has worsened, so we granted
an increase in your assigned percentage:
Medical Description                      Old Percent               New Percent             Effective Date
                                                         (%) Assigned              (%)Assigned

Residuals of traumatic                        40%                           70%                        Jul 8, 2015
brain injury to include
mild memory loss,
abnormal social
behavior, insomina
and light sensitivity

Basic eligibility to Dependents' Educational Assistance is established from July 8, 2015.
We assigned a permanent 100% disability evaluation for your service connected disabilities
effective July 8, 2015.

We granted entitlement to the 100% rate effective July 8, 2015, because you are unable to
work due to your service connected disabilities.

No examination will be scheduled in the future for your permanent and total disabilities.

Your overall or combined rating is 70%. We do not add the individual percentages of each
condition to determine your combined rating. We use a combined rating table that considers
the effect from the most serious to the least serious conditions.

THIS IS CONSIDERED A PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL
We have withheld 20% from your award for attorney fees per your signed agreement we
received with your private attorney. You will receive a separate letter regarding this
withholding in the near future.
We have enclosed a copy of your Rating Decision for your review. It provides a detailed
explanation of our decision, the evidence considered, and the reasons for our decision...

MH Disabilities.jpg

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EVERY VET who is TDIU should get SMC S, per Howell:

Refering to Howell:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

In pertinet part, noting that this is not "statuatory" SMC S, but rather, "housebound in fact":

 

Quote

 

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.


 

Here is why I think every TDIU Vet should get housebound:  If you are "unable to maintain SGE due to SC conditions", then you are unable to "leave the house in order to earn an income".  If you are not able to work, then you arent able to leave the home TO GO TO WORK.  Duh!!!

I will be fighting this fight with VA soon, but since Im at the CAVC, I am waiting for my turn at the BVA for the SMC S issue.   (Im at cavc about effective dates, and going to the BVA on a different issue, that is, SMC S.)  

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I remember in my c&pfor anxiety & depression is says both that the symptoms are seperate and something about speculation.  I will find my c&p.

 

 

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The housebound (SMC S) I referenced in Howell, HAS NOTHING TO DO WITH 100 percent plus 60 percent "seperate and distinct".  The "Howell" criteria is all about "housebound in fact", not statuatory housebound.

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