Injuries secodary to service connected conditions

[Lemuel]

I was diagnosed with and service connected for "traumatic brain disease" in 1985.  That nomenclature has changed under diagnostic code 8045 several times.  In 1990 I had an MVA (motor vehicle accident) and was hospitalized for two days at the West Los Angeles VA Medical and Research Center.  A neurologist diagnosed me as having an "altered state of consciousness" as a cause of the accident and reported the same to the California DMV.  I voluntarily turned in my drivers license not wanting to cause any more accidents.

My contention is that it is a clear and unmistakable error that when I claimed a secondary entitlement to service connection of spinal disc disease which resulted from a ruptured disc that occurred in the healing process of a very bad left side bruise and two fractured ribs.  The claim was denied because the adjudicator didn't find any history of a back problem in my military health record.

I believe this was because the examining physician left a note in my record referring to another patient who had a treatment record that began after I had been discharged from the Navy and before my September 1990 MVA.

What are my chances of getting a CUE decision on this?

 

[Lemuel]

Thanks Buck52 and Berta.

My BVA decision is:  Citation Nr: 1715897 Decision Date: 05/11/17 Archive Date: 05/22/17 DOCKET NO. 15-34 597

Buck, I'm especially grateful for the citations which I can use in Lois Law to find my way to anything helpful to my case.  And yes, I understand why Ms. Ellermann didn't go forward to the CAVC.

Has the claim for a "system" ever been applied to revert a denial based on a specific?  For instance "residuals of wrist condition" when the compensable disability is the reach of the minor thumb.  I kept asking for compensation for the "wrist" when my VSO rep should have recognized the problem was the thumb.  I ask for wrist because that was the injury and surgery.  The thumb is a secondary residual.  There are 3 bones involved in the ankyloses.  One happens to be the proximal phalange of the thumb.

"(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. "  Seems to be the rule here as well as you can't force the adjudicator to order the proper examination or due the full "injury evaluation" required. per your post Buck52

Same with tinnitus.  I ask for compensation for hearing difficulty because I had already been issued hearing aides by the Navy and wanted to be able to get them from the VA.  That was the only examination done by the VA on my 1974 claim and a new hearing aid was provided.  I always complained of tinnitus but the civilian who did the audiogram didn't record it.  It was recorded in most of my previous Navy audiograms since 1965.

However, I think I'm good on the spinal disc disease.  The clear and unmistakable error was looking to the history of military treatment instead of the presumptive TBI secondary manifestation of "temporal lobe seizures" and the accident residuals caused by a seizure.

But that is a later development I believe.  After 1992.  But even before the presumptive secondary connection I believe the standard would have been a secondary connection based on the evidence.

Not much chance at the CAVC.  expect to do better in the U S District Court with a claim against the U S Government citing specifics of missed diagnosis and treatment as well as deceptions either deliberate or inattentive blindness and citing the specific articles of 38 CFR that call for the full injury evaluation in the first claim as well as warnings against the definitions of inattentive blindness.

The veteran is denied the use of state law in prosecuting his claims at the CAVC.  Seems reciprocal to deny the VA (government) use of these CAVC cases.

[Berta]

This is a long read but I hope all of the advocates here will go over this remand and add anything tyhey can think of .

 

“FINDINGS OF FACT

 

1.  In a final January 1992 rating decision, service connection for tinnitus was granted, effective December 10, 1989.

 

2.  The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for tinnitus prior to December 10, 1989.”

 

I assume this ( # 2) is a factual statement.

 

3.  In a February 2002 rating decision, the AOJ granted service connection for  mixed organic personality syndrome with depression and assigned a 30 percent disability rating effective October 11, 1984, under Diagnostic Code 8045-9304 (exclusive of the period from May 8, 1993, to June 10, 1993 for which a temporary total rating was assigned under 38 C.F.R. ง 4.29).

I assume you had been hospitalized at this point for a temp 100%...?

4.  After the Veteran was notified of the decision and his appellate rights in June 2002, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case.

5.  Following the July 2005 statement of the case, VA received the Veteran's claim seeking an increased rating for his service-connected TBI on July 10, 2009.

6.  In a September 2010 rating decision, the AOJ awarded a 40 percent rating for the Veteran's service-connected TBI, effective July 10, 2009, the date his claim was received; it is not factually ascertainable that an increase in disability took place prior to that time.

7.  A final February 2002 rating decision declined to reopen the Veteran's claims for service connection for a lumbar spine disorder and a cervical spine disorder, finding that new and material evidence had not been received.  After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case.  

8.  Evidence received since the final February 2002 rating decision, is not cumulative and/or redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating his claim for service connection for a lumbar spine disorder and a cervical spine disorder.

9.  The competent and credible evidence of record demonstrates that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities since July 10, 2009.

(The lumbar and spine disability----I am assuming is, 

CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to December 10, 1989, for the award of service connection for tinnitus have not been met.  38 U.S.C.A. ง 5110 (West 2014); 38 C.F.R. งง 3.155, 3.157, 3.400 (2016).

2.  The criteria for an effective date prior to July 10, 2009, for the grant of a 40 percent rating for service-connected TBI have not been met.  38 U.S.C.A. งง 5110; 38 C.F.R. ง 3.155, 3.157, 3.400.

3.  The February 2002 rating decision that denied service connection for a lumbar spine disorder and a cervical spine disorder is final.  38 U.S.C. ง 7105(c) (West 2014); 38 C.F.R. งง 3.104, 20.302, 20.1103 (2016).

4.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder.  38 U.S.C.A. ง 5108 (West 2014); 38 C.F.R. ง 3.156(a) (2016).

5.  Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met as of July 10, 2009.  38 U.S.C.A. งง 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. งง 3.102, 3.340, 3.341, 4.16, 4.18 (2016).

 

What I see here is this….the BVA gave your issues a thorough review.

# 5 awarded TDIU and resolved # 2 –back to July 10, 2009,based on the evidence they had.

# 4 is the key issue here, in my opinion, because with TDIU now, the only additional comp I foresee would be an SMC award-SMC S if the lumbar and spine issue is service connected at least at 60% or your evidence would warrant e Housebound status ( the additional comp is the same amount for SMC S, under these findings but VA will only pay one SMC S award.

The BVA gave their rationale for the tinnitus EED denial.I see no way to have that altered.

They also gave a medical rationale for the TBI, keeping it at 30%.

BVA also raised the 38 CFR 3.156 © issue and found it did not apply to their decision.

This is a KEY BVA STATEMENT:

“Evidence added to the record since the February 2002 rating decision includes the Veteran's lay statements, VA treatment records, private treatment records, Social Security Administration (SSA) records, and a June 2015 VA examination report.  A June 1991 SSA evaluation notes a history of "passing out" with altered stated of consciousness, rule out complex-partial seizure.  Additionally, there is a September 1990 VA treatment record that noted the Veteran's complaint of back pain following a motor vehicle accident.

The Board finds that such evidence is new because it was not before the RO at the time of the February 2002 rating decision.  Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished facts necessary to substantiate the claims of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder.  The evidence indicates that he experienced episodes of passing out which may have led to the September 1990 accident, and that he complained of back pain following the September 1990 accident.  While this evidence insufficient by itself to support the award of service connection, the Board finds that the evidence submitted is both new and material, and that the claims are reopened.”

TDIU:

In part:

“However, review of the record demonstrates that he filed an informal claim for a TDIU in June 1987.  Specifically, in a June 24, 1987 statement, the Veteran requested consideration for additional compensation benefits based on his employability situation which prevented him from substantially gainful employment.  The AOJ never acknowledged his claim, and entitlement to a TDIU was not adjudicated until a June 2015 rating decision denied the claim.  As such the Board finds his claim for a TDIU stems from the June 1987 informal claim.”  

“Initially, the Board acknowledges that the Veteran was awarded SSA disability benefits since September 1990 due to his back and cerebral trauma.  However, the mere fact that the SSA has deemed him unemployable does not dictate the outcome in this matter; although they are relevant and to be considered, Social Security Disability determinations are not binding on VA.  See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992).

A June 1991 SSA neurological evaluation noted the diagnosis of a possible organic brain syndrome, a history of passing out with altered state of consciousness, and history of chronic intractable low back pain syndrome with possible herniated disc at L4, L%, and S1.

In a January 2010 statement, the Veteran stated that he worked part-time with a certified professional accountant.  He stated that he was only able to work 20 hours because his work performance had greatly slowed and had become erratic.  He stated that his boss allowed him to work on a part-time basis because his children were autistic and he understood the limitations caused by a cognitive disability.  He stated that, by 1990, his limitations were placing too great a load on the full time employees.  Because of this, and the loss his driver's license, he had to stop working.

In January 2010, the Veteran submitted a TBI Disability Benefits Questionnaire completed by his private physician.  His symptoms included dizziness a couple of times during the year due to stress; left upper extremity insufficient paralysis; sleep disturbances four times a week; a medium degree of fatigue;  a medium degree of nausea; difficulty going up and down the stairs; memory problems, such as forgetting schedules; aprosexia and executive dysfunction, such as foggy brain, speed of processing information, setting goals, planning, organizing, prioritizing, self-control, problem solving, decision making, self-motivation, and flexibility.  The examiner also noted pain and depression.  The examiner opined that he was unemployable due to depression, and that he was unemployed since 1990.  The examiner noted that the Veteran's depression was affecting his daily life, including his ability to organize his personal surroundings and belongings.

A June 2015 VA examiner noted that the Veteran's psychiatric symptoms included depression, irritability, and anger.  Also, he reported problems with short term memory, remembering directions, multitasking, executive functioning, and lapses in awareness.  The examiner noted that the Veteran had some deficits in memory and high level intellectual abilities, as well as mood and personality changes.

During a June 2015 VA TBI examination, the examiner determined that the Veteran's TBI symptoms did not affect his ability work.

In his August 2016 formal claim for a TDIU.  He indicated that he last worked in September 1990 as a part time book keeper.  He also indicated that he had a bachelor's degree in business administration with a minor in accounting that he completed in May 1976.

Based on the foregoing, the Board finds the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unemployable since July 10, 2009, the day he met the schedular criteria.  For example, the January 2010 examiner noted that he was unemployable due to depression, and that his depression affected his ability to organize his personal surrounding and belongings.  Moreover, the June 2015 VA examiner noted that he had some deficits in memory and high level intellectual abilities, as well as mood and personality changes.

While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  Moreover, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

Therefore, based on the foregoing, and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history as of July 10, 2009, the day he met the schedular criteria.  Therefore, entitlement to a TDIU is granted.  38 U.S.C.A. ง 5107; 38 C.F.R. ง 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).”

In the BVA’s order this is how they granted the TDIU back to July 10,2009.

The Remand is extensive:

In part :

Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for his tinnitus, TBI, and mixed organic personality syndrome with depression.  Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).

That makes sense-the tinnitus denial, TBI, and mixed personality syndrome are all going to be considered again.

This part of the remand is Great!

“With respect to the assignment of a TDIU under the provisions of 38 C.F.R. ง 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded on an extraschedular rating basis prior to July 10, 2009.  The Board finds that the medical and lay evidence of record, including the Veteran's SSA records, provides plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected TBI and mixed organic personality syndrome with depression.  Accordingly, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. ง 4.16(b).”

“Service Connection for a Lumbar Spine Disorder and a Cervical Spine Disorder

The Veteran argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted due to his military service.  See May 2010 Notice of Disagreement.  Alternatively, he argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted as secondary to his service-connected TBI.  Specifically, he alleges that his lumbar and cervical spine disorder are secondary to a September 1990 motor vehicle accident that was caused by what he calls a seizure, absence, or attention deficit, associated with his service-connected TBI.  See, e.g., January 2010 Statement.

In connection with his petition to reopen, the Veteran underwent a VA examination in June 2015.  He was diagnosed with degenerative arthritis of the lumbar spine and cervical spine.  The examiner opined that his spinal disorders were less likely than not related to his military service, to include motor vehicle accidents that occurred in 1969 and 1971.  The examiner reasoned that there was no evidence of a low back or neck condition in his service treatment record, including his discharge examination.  The examiner noted that the Veteran reported that his problems with his back and neck started after the September 1990 motor vehicle accident.

The Board finds that the June 2015 examination is inadequate for two reasons.  First, the examiner merely relied upon the lack of any complaints of back or neck pain in the service treatment records to support the opinion.  See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records, and does not account for competent lay testimony, to provide a negative opinion).  Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident.

Once VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because of these deficiencies, and to ensure that the Veteran's lay statements concerning his military service and the circumstances of the September 1990 motor vehicle accident are adequately considered, the Board finds that a new VA examination is necessary.”

This is the basis of what could award this veteran SMC S :

“Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident.”

That certainly makes sense…a service connected disability could impact on anyone’s ability to drive…

Lemuel do you best to fulfill this yourself if you can, if the VA asks for any more evidence:

2.  Contact the Veteran and request authorization to obtain any outstanding private medical records pertinent to his claims on appeal.  Make at least two (2) attempts to obtain records from any identified source.  

There are 9 points to the Remand.

In my opinion,Lemuel,it might take a strong Independent Medical opinion from a real doctor as to the TDIU factor BUT the BVA has asked for extraschedular consideration so that itself might resolve the TDIU EED.

I don’t see many BVA decisions that call for extraschedular so this is GREAT!

But the main point you have on the MVA is what,in my opinion, will hopefully gain you SMC S.

 You cannot drive anymore due to the effects of the SC TBI.

I don’t know if the neck and spine injuries will get you a higher SMC rating.

Many here have experience on those ratings

I don’t see how the VA could possibly get around that.I hope you do not need to get any IMos at all…they are costly but this is what I see would be the best area to invest in an IMO-if needed, as you do get TDIU now.

I urge others here to chime in…

My dead husband had organic brain syndrome due to TIAs and a stroke the VA never properly treated ( Awarded under Section 1151.)

This was pre the 2008 DC code 8045 change but I will go over that award to see if it might help here in any way.It might not help.

Thanks for giving us this decision link.

“FINDINGS OF FACT

 

1.  In a final January 1992 rating decision, service connection for tinnitus was granted, effective December 10, 1989.

 

2.  The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for tinnitus prior to December 10, 1989.”

 

I assume this ( # 2) is a factual statement.

 

3.  In a February 2002 rating decision, the AOJ granted service connection for  mixed organic personality syndrome with depression and assigned a 30 percent disability rating effective October 11, 1984, under Diagnostic Code 8045-9304 (exclusive of the period from May 8, 1993, to June 10, 1993 for which a temporary total rating was assigned under 38 C.F.R. ง 4.29).

I assume you had been hospitalized at this point for a temp 100%...?

4.  After the Veteran was notified of the decision and his appellate rights in June 2002, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case.

5.  Following the July 2005 statement of the case, VA received the Veteran's claim seeking an increased rating for his service-connected TBI on July 10, 2009.

6.  In a September 2010 rating decision, the AOJ awarded a 40 percent rating for the Veteran's service-connected TBI, effective July 10, 2009, the date his claim was received; it is not factually ascertainable that an increase in disability took place prior to that time.

7.  A final February 2002 rating decision declined to reopen the Veteran's claims for service connection for a lumbar spine disorder and a cervical spine disorder, finding that new and material evidence had not been received.  After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case.  

8.  Evidence received since the final February 2002 rating decision, is not cumulative and/or redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating his claim for service connection for a lumbar spine disorder and a cervical spine disorder.

9.  The competent and credible evidence of record demonstrates that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities since July 10, 2009.

(The lumbar and spine disability----I am assuming is, 

CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to December 10, 1989, for the award of service connection for tinnitus have not been met.  38 U.S.C.A. ง 5110 (West 2014); 38 C.F.R. งง 3.155, 3.157, 3.400 (2016).

2.  The criteria for an effective date prior to July 10, 2009, for the grant of a 40 percent rating for service-connected TBI have not been met.  38 U.S.C.A. งง 5110; 38 C.F.R. ง 3.155, 3.157, 3.400.

3.  The February 2002 rating decision that denied service connection for a lumbar spine disorder and a cervical spine disorder is final.  38 U.S.C. ง 7105(c) (West 2014); 38 C.F.R. งง 3.104, 20.302, 20.1103 (2016).

4.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder.  38 U.S.C.A. ง 5108 (West 2014); 38 C.F.R. ง 3.156(a) (2016).

5.  Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met as of July 10, 2009.  38 U.S.C.A. งง 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. งง 3.102, 3.340, 3.341, 4.16, 4.18 (2016).

 

What I see here is this….the BVA gave your issues a thorough review.

# 5 awarded TDIU and resolved # 2 –back to July 10, 2009,based on the evidence they had.

# 4 is the key issue here, in my opinion, because with TDIU now, the only additional comp I foresee would be an SMC award-SMC S if the lumbar and spine issue is service connected at least at 60% or your evidence would warrant e Housebound status ( the additional comp is the same amount for SMC S, under these findings but VA will only pay one SMC S award.

The BVA gave their rationale for the tinnitus EED denial.I see no way to have that altered.

They also gave a medical rationale for the TBI, keeping it at 30%.

BVA also raised the 38 CFR 3.156 © issue and found it did not apply to their decision.

This is a KEY BVA STATEMENT:

“Evidence added to the record since the February 2002 rating decision includes the Veteran's lay statements, VA treatment records, private treatment records, Social Security Administration (SSA) records, and a June 2015 VA examination report.  A June 1991 SSA evaluation notes a history of "passing out" with altered stated of consciousness, rule out complex-partial seizure.  Additionally, there is a September 1990 VA treatment record that noted the Veteran's complaint of back pain following a motor vehicle accident.

The Board finds that such evidence is new because it was not before the RO at the time of the February 2002 rating decision.  Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished facts necessary to substantiate the claims of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder.  The evidence indicates that he experienced episodes of passing out which may have led to the September 1990 accident, and that he complained of back pain following the September 1990 accident.  While this evidence insufficient by itself to support the award of service connection, the Board finds that the evidence submitted is both new and material, and that the claims are reopened.”

TDIU:

In part:

“However, review of the record demonstrates that he filed an informal claim for a TDIU in June 1987.  Specifically, in a June 24, 1987 statement, the Veteran requested consideration for additional compensation benefits based on his employability situation which prevented him from substantially gainful employment.  The AOJ never acknowledged his claim, and entitlement to a TDIU was not adjudicated until a June 2015 rating decision denied the claim.  As such the Board finds his claim for a TDIU stems from the June 1987 informal claim.”  

“Initially, the Board acknowledges that the Veteran was awarded SSA disability benefits since September 1990 due to his back and cerebral trauma.  However, the mere fact that the SSA has deemed him unemployable does not dictate the outcome in this matter; although they are relevant and to be considered, Social Security Disability determinations are not binding on VA.  See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992).

A June 1991 SSA neurological evaluation noted the diagnosis of a possible organic brain syndrome, a history of passing out with altered state of consciousness, and history of chronic intractable low back pain syndrome with possible herniated disc at L4, L%, and S1.

In a January 2010 statement, the Veteran stated that he worked part-time with a certified professional accountant.  He stated that he was only able to work 20 hours because his work performance had greatly slowed and had become erratic.  He stated that his boss allowed him to work on a part-time basis because his children were autistic and he understood the limitations caused by a cognitive disability.  He stated that, by 1990, his limitations were placing too great a load on the full time employees.  Because of this, and the loss his driver's license, he had to stop working.

In January 2010, the Veteran submitted a TBI Disability Benefits Questionnaire completed by his private physician.  His symptoms included dizziness a couple of times during the year due to stress; left upper extremity insufficient paralysis; sleep disturbances four times a week; a medium degree of fatigue;  a medium degree of nausea; difficulty going up and down the stairs; memory problems, such as forgetting schedules; aprosexia and executive dysfunction, such as foggy brain, speed of processing information, setting goals, planning, organizing, prioritizing, self-control, problem solving, decision making, self-motivation, and flexibility.  The examiner also noted pain and depression.  The examiner opined that he was unemployable due to depression, and that he was unemployed since 1990.  The examiner noted that the Veteran's depression was affecting his daily life, including his ability to organize his personal surroundings and belongings.

A June 2015 VA examiner noted that the Veteran's psychiatric symptoms included depression, irritability, and anger.  Also, he reported problems with short term memory, remembering directions, multitasking, executive functioning, and lapses in awareness.  The examiner noted that the Veteran had some deficits in memory and high level intellectual abilities, as well as mood and personality changes.

During a June 2015 VA TBI examination, the examiner determined that the Veteran's TBI symptoms did not affect his ability work.

In his August 2016 formal claim for a TDIU.  He indicated that he last worked in September 1990 as a part time book keeper.  He also indicated that he had a bachelor's degree in business administration with a minor in accounting that he completed in May 1976.

Based on the foregoing, the Board finds the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unemployable since July 10, 2009, the day he met the schedular criteria.  For example, the January 2010 examiner noted that he was unemployable due to depression, and that his depression affected his ability to organize his personal surrounding and belongings.  Moreover, the June 2015 VA examiner noted that he had some deficits in memory and high level intellectual abilities, as well as mood and personality changes.

While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  Moreover, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

Therefore, based on the foregoing, and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history as of July 10, 2009, the day he met the schedular criteria.  Therefore, entitlement to a TDIU is granted.  38 U.S.C.A. ง 5107; 38 C.F.R. ง 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).”

In the BVA’s order this is how they granted the TDIU back to July 10,2009.

The Remand is extensive:

In part :

Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for his tinnitus, TBI, and mixed organic personality syndrome with depression.  Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).

That makes sense-the tinnitus denial, TBI, and mixed personality syndrome are all going to be considered again.

This part of the remand is Great!

“With respect to the assignment of a TDIU under the provisions of 38 C.F.R. ง 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded on an extraschedular rating basis prior to July 10, 2009.  The Board finds that the medical and lay evidence of record, including the Veteran's SSA records, provides plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected TBI and mixed organic personality syndrome with depression.  Accordingly, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. ง 4.16(b).”

“Service Connection for a Lumbar Spine Disorder and a Cervical Spine Disorder

The Veteran argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted due to his military service.  See May 2010 Notice of Disagreement.  Alternatively, he argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted as secondary to his service-connected TBI.  Specifically, he alleges that his lumbar and cervical spine disorder are secondary to a September 1990 motor vehicle accident that was caused by what he calls a seizure, absence, or attention deficit, associated with his service-connected TBI.  See, e.g., January 2010 Statement.

In connection with his petition to reopen, the Veteran underwent a VA examination in June 2015.  He was diagnosed with degenerative arthritis of the lumbar spine and cervical spine.  The examiner opined that his spinal disorders were less likely than not related to his military service, to include motor vehicle accidents that occurred in 1969 and 1971.  The examiner reasoned that there was no evidence of a low back or neck condition in his service treatment record, including his discharge examination.  The examiner noted that the Veteran reported that his problems with his back and neck started after the September 1990 motor vehicle accident.

The Board finds that the June 2015 examination is inadequate for two reasons.  First, the examiner merely relied upon the lack of any complaints of back or neck pain in the service treatment records to support the opinion.  See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records, and does not account for competent lay testimony, to provide a negative opinion).  Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident.

Once VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because of these deficiencies, and to ensure that the Veteran's lay statements concerning his military service and the circumstances of the September 1990 motor vehicle accident are adequately considered, the Board finds that a new VA examination is necessary.”

This is the basis of what could award this veteran SMC S :

“Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident.”

That certainly makes sense…a service connected disability could impact on anyone’s ability to drive…

Lemuel do you best to fulfill this yourself if you can, if the VA asks for any more evidence:

2.  Contact the Veteran and request authorization to obtain any outstanding private medical records pertinent to his claims on appeal.  Make at least two (2) attempts to obtain records from any identified source.  

There are 9 points to the Remand.

In my opinion,Lemuel,it might take a strong Independent Medical opinion from a real doctor as to the TDIU factor BUT the BVA has asked for extraschedular consideration so that itself might resolve the TDIU EED.

I don’t see many BVA decisions that call for extraschedular so this is GREAT!

But the main point you have on the MVA is what,in my opinion, will hopefully gain you SMC S.

 You cannot drive anymore due to the effects of the SC TBI.

I don’t know if the neck and spine injuries will get you a higher SMC rating.

Many here have experience on those ratings

I don’t see how the VA could possibly get around that.I hope you do not need to get any IMos at all…they are costly but this is what I see would be the best area to invest in an IMO-if needed, as you do get TDIU now.

I urge others here to chime in…

My dead husband had organic brain syndrome due to TIAs and a stroke the VA never properly treated ( Awarded under Section 1151.)

This was pre the 2008 DC code 8045 change but I will go over that award to see if it might help here in any way.It might not help.

Thanks for giving us this decision link.

 

 

 

 

[Berta]

to add.....can anyone tell me how to fix this into the BVA text  format without the arrows?

Often when I post something like this from BVA, there is a pop up that asks if I want to put it as plain text but no pop up came.

Also is anyone else having a problem posting replies?

For the last week or so I have had temporary problems with the reply area.I get a big capital I thing and cannot type into the reply box at all. 

It might be easier to just click on the BVA link Lemuel gave us- to read the BVA remand.

 

[Buck52]

I'm not sure Ms berta, although I have not had any problems posting reply's.

Here is a BVA Case that may shed some light as for as CUE claims to secondary conditions? / Reopen Claims filed as CUE?

 

This maybe your hubby's case Ms Berta? the case #

No. 98-354

Richard D Simmons

           V

Togo D West Jr

Secretary of Veterans Affairs

 

[Buck52]

I apologize to you guys  I may have this post mixed up with another?

sorry!

[Berta]

My husband never had a case at BVA or CAVC Buck.

There is quite a big  difference between a re-open and a CUE claim.

Re Opens need new and material evidence that the VA has not seen before.

CUE claims however rest on the evidence in VA's possession at time of the decision being CUEd.

Claimants  cannot provide any new evidence for a CUE claim.