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First Class Petty Officer
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About HorizontalMike

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    E-5 Petty Officer 2nd Class

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    100% TDIU Dec 2015

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  • Service Connected Disability
  • Branch of Service

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  1. Preparation For Decision

    That was my experience. The remaing question is... at what rate/percent? Great news I hope!
  2. Here in Texas it is a one consent State where only one party needs to give approval to record (and you are that one party in this case). I recorded my DRO hearing.
  3. Gov't Shutdown

    Unfortunate, but here is the answer: https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/ Appendix C – Functions to be Suspended BVA Claims appeals will be discontinued
  4. Unfortunately, it looks like all BVA appeals will be suspended during shut-down. Never mind that the BVA is behind several years as it is... }8-( https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/ Appendix C – Functions to be Suspended Organization Functions to be Suspended VHA None BVA Claims appeals will be discontinued
  5. Won everything

    Yee hah! Congrats! The only way I got to 100% was through TDIU P&T. I am still fighting/appealing my other issues to get to 100% schedular. Thanks for letting us know!
  6. IMO, they are ALWAYS looking for an easy out. If they can justify that you had the MH issue as a child, then the BVA/VA would/will deny any disability... Case closed. To me, as I understand it, much of what you want to rely on is... What is in your military entry physical exam, and what kinds of things are in that document. In other words, if the military failed to catch/record a medical condition upon your enlistment, then the VA cannot deny you on the basis of a pre-existing condition . Your testimony is NOT a reliable diagnosis (you are NOT a medical doctor) of your condition. You, the claimant/patient can only document your symptoms for the doctors to diagnose. Hope this helps.
  7. Gastone said: "... As your Appeal nears the top of the pile, you will receive a BVA Notice of "90 Day N & M Evidence Submission Cut Off..." Is that notice given BEFORE the actual cutoff? Or just telling you too late?
  8. My BVA appeals are for MDD service connection and Sleep Apnea. BTW, the case I posted the link to IS/WAS NOT mine and is current 8-30-2017. I found it while doing a search of the 2016-17 Decisions. I was ONLY pointing out the BVA clarification regarding the legal requirement to rate a separate diagnosis separately #8045 TBI). My concern is that the BVA is using all of the "EXAMPLES" listed under #8045, as being all-inclusive related list even though the language clearly states for example "...One or more neurobehavioral effects..." and "...Examples of neurobehavioral effects are:... Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects..." In other words, for example say that I was rated under #8045 Residuals TBI for Neurobehavioral - Irritability level3. Does that ALSO mean that all of those OTHER examples above (under @8045) are now off-limits to another diagnosed disorder like/under MDD that should be evaluated separately?
  9. Plus, since my attorney has already gotten me the TDIU, I strongly suspect that THAT was the easy money for him and he probably is not interested in either my MDD or OSA appeals going forward. In other words, an easy hit and run... For me, it is important because of SMC-s (and extra approx $350/month), PLUS it gets me closer to the 100% schedular. I am concerned about the latter because the R's keep trying to suggest dumping all the TDIU when turning 65, over to SS only. Yeah, yeah, I know that it has been quickly shot down multiple times when suggested for the budget cuts, BUT why is it continually brought up time after time? BTW, found this 2017 BVA case decision regarding TBI and depression ratings: https://www.va.gov/vetapp17/files6/1736081.txt "...There are no additional neurological symptoms or manifestations, either asserted by the Veteran or reflected in the evidence of record, that would warrant higher or separate ratings under the applicable rating criteria during the period on appeal. See 38 C.F.R. § 4.124a (2008). Nevertheless, the Board also finds that the separate 50 percent assigned the Veteran's major depressive disorder associated with service-connected traumatic encephalopathy, status post TBI, effective from October 23, 2008, is warranted for the entire prior appellate under review. In this regard, the RO determined that a separate rating for the psychiatric manifestations of the Veteran's service-connected traumatic encephalopathy, status post TBI, was not assignable prior to October 23, 2008, as the pre-2008 version of Diagnostic Code 8045, in effect throughout the relevant appellate period, prohibited the assignment of separate rating for mental disorders associated with traumatic brain injuries. See June 2011 Statement of the Case (determining that "[p]rior to the change in the rating criteria used to evaluate [the Veteran's] service-connected traumatic encephalopathy, manifestations of traumatic brain injuries, to include mental disorders, could not be separately rated"). However, this is simply not the case. 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..." QUESTION: Doesn't the medical description, under the Rating Letter "What we decided" LIMIT that rating to exactly what is stated there? In other words, is the DVA/BVA now restricted from using the additional/entire laundry list of symptoms listed under 8045 Residuals of traumatic brain injury (TBI) to JUST what is stated under "What we Decided"? My Rating Letter states: What We Decided We determined that the following service connected condition has worsened, so we granted an increase in your assigned percentage: Old Percent New Percent Effective Date Assigned AssignedResiduals of traumatic 40% TO 70% Jul 8, 2015 Medical Description -- 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
  10. Thanks Vync. Been out all day and just got back online, ready to call above, but as Lawyer Luck would have it I got an email with docket numbers attached. This will be important because my FORM 9 indicated NO board meeting required, so I need to gather all currents facts of my appeal and send my last submission directly to the Board. My lawyer had promised to get me a "forensic IMO" on my sleep apnea to counter the VA's botched VARO decision that was completed be an incompetent PA. And yes, that decision reads very poorly and inaccurate. Thanks for the above info. I hadn't thought about how to contact the Board. until I got the notice that a docket number had/has been assigned.
  11. Checking on eBenefits I have found out that my BVA appeal has been assigned a "Docket Number", however that docket number has NOT been given to me. My lawyer, lately has been of no LUCK to me in answering my emails or phone calls. Appears too busy to pay attention to these kind of details {sarcasm}. That said... QUESTION: How do I find out what my Docket Number is? Posted on eBenefits (below): 11/29/2017 Awaiting Place on the Docket Generally, the Board is required to decide appeals in docket order. Your appeal was assigned a docket number based on the date VA received your VA Form 9 (Substantive Appeal). Your appeal is currently waiting its turn for assignment to a Veterans Law Judge based on your docket number. 11/29/2017
  12. My December 100% disability deposit posted today (11-28-2017).  It DID NOT include the 2% increase that was to start December 1st, 2017.  

    More VA tricks?  Pay Decmber's amount "early" to avoid the increase?

    1. TexasMarine


      Unlike SSA, while your rate of pay may have increased effective 12/1/2017, you have not earned that rate of pay until the end of the month.  The Raise will be present on the payment you will receive 12/29/2017.

    2. HorizontalMike


      Just more VA fun...  ...NOT :ohmy:

  13. WH email

    I also like it. Especially since I am at +5yr, with my Appeal having already been certified to the board awaiting... IMO, "effective dates" appear to be one of the largest sources of errors that the BVA and above end up having to deal with. Procrastination appears to be the mode of operation...
  14. My most current award letter is below at bottom (redacted). My TDIU is 100% P&T with NO scheduled exams in the future. TBI increased to 70% My MDD continues on appeal (see below in bold) My SA-OSA, while not noted in this letter, has been corrected and continues on appeal. While searching SMCs on this site, I came across this: https://ptsdlawyers.com/blog/bradley-v-peake-housebound-rate-160-percent/ BINGO! This sounds like the best way to proceed, since my 100% TDIU was awarded separately using only the 70% TBI. My current 10% Tinnitus MDD appeal (probably going to be 50% since much of the TBI Residuals are under #3 Neurological) OSA - 50% appeal. I am on CPAP and have SRs that show most of the symptoms of OSA. FWIW, the term for the diagnosis wasn't even coined until at least 10yr later. So, following the Bradley v. Peake ruling below, my 100% TDIU, being granted separately from the above, allows my other SC-disabilities to qualify me for SMC-S: "...In the Bradley opinion, CAVC proposed it is possible for a veteran to be granted TDIU for a single disability and later granted service connection for another disability or other disabilities that amount to a 60 percent rating. CAVC indicated this interpretation complies with VA General Counsel’s 1994 opinion and 1999 opinion. CAVC held section 1114(s) does not limit a service-connected disability rated as total to only a schedular rating of 100 percent, and VA’s current regulation 38 C.F.R. 3.350(i) permits a TDIU rating based on a single disability to satisfy the section 1114(s) requirement of a “total” rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The application of this holding is veteran’s who have been granted TDIU for a single disability, like ischemic heart disease or PTSD, and later qualify for additional service-connected disability or disabilities equal to 60 percent or more, qualify for section 1114(s) special monthly compensation..." QUESTION: Does this all make sense? Rating Decision 11/13/2015 INTRODUCTION The records reflect that you are a veteran of the Vietnam Era and Peacetime. You served in the Navy from XXXXX XX, 1972 to XXXXX XX, 1975. You filed a claim for increased evaluation that was received on July 8, 2015. Based on a review of the evidence listed below, we have made the following decisions on your claim. DECISION 1. Entitlement to individual unemployability is granted effective July 8, 2015. 2. Basic eligibility to Dependents' Educational Assistance is established from July 8, 2015. 3. Evaluation of residuals of traumatic brain injury to include mild memory loss, abnormal social behavior, insomnia and light sensitivity, which is currently 40 percent disabling, is increased to 70 percent effective July 8, 2015. EVIDENCE • VA Form 2 l-8940, Veteran's Application For Increased Compensation Based On Unemployability, received July 8, 2015 • VA Examination, VA Outpatient Clinic, dated September 8, 2015 • VAMC (Veterans Affairs Medical Center) treatment records, VA Healthcare System, from June 25, 2003 through November 5, 2015 REASONS FOR DECISION 1. Entitlement to individual unemployability. Entitlement to individual unemployability is granted because the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, effective July 8, 2015, the date you met the schedular requirements for this benefit. The evidence shows the examiner noted that your residual conditions attributable to a traumatic brain injury impact your ability to work and that you last worked in 2006. 2. Eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35. Eligibility to Dependents' Educational Assistance is derived from a veteran who was discharged under other than dishonorable conditions; and, has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the veteran died as a result of a service-connected disability. Also, eligibility exists for a service person who died in service. Finally, eligibility can be derived from a service member who, as a member of the armed forces on active duty, has been listed for more than 90 days as: missing in action; captured in line of duty by a hostile force; or forcibly detained or interned in line of duty by a foreign government or power. Basic eligibility to Dependents' Education Assistance is granted as the evidence shows the veteran currently has a total service-connected disability, permanent in nature. 3. Evaluation of residuals of traumatic brain injury to include mild memory loss. abnormal social behavior. insomnia and li&ht sensitivity currently evaluated as 40 percent disabling. The evaluation of residuals of traumatic brain injury to include mild memory loss, abnormal social behavior, insomnia and light sensitivity is increased to 70 percent disabling effective July 8, 2015. The effective date of this grant is July 8, 2015. Entitlement to an increased evaluation has been established from the date the claim was received. When an increased evaluation is granted based on VA medical evidence showing an increase in disability after the date the claim was received, the effective date of the increase is the date the claim was received. The examiner noted that your residual conditions attributable to a traumatic brain injury impact your ability to work. 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. An overall 70 percent evaluation is assigned for your residuals of traumatic brain injury to include mild memory loss, abnormal social behavior, insomnia and light sensitivity based on the highest level of severity of "3". This is a partial grant of benefits sought on Appeal
  15. Thanks Buck, Here is my issue, according to me. My TBI was originally rated at 40% TBI + 10% Tinnitus =50%. The TBI 40% was rated a 2 under Abnormal Social behavior. Got a partial grant that too 70% under Neurological 3. Then TDIU kicked in, but as always the VA screwed up the effective date, so appeal continues. The BIG issue is that the VA has declared that my MDD is to be considered SECONDARY under the Tramatic Brain Injury, and should be rated separately. HOWEVER, what the VA has done thus far, is to ONLY rate the TBI under "Residuals of TBI" and have failed to rate the MDD under its own diagnosis code. My lawyer has indicated that the most recent C&P will probably get me 50% under MDD (besides the 50% OSA w/CPAP). The current TBI is 3 under Neurological (read MDD) residuals and Social is only at 2, which I argue is actually a 3, or at least it has progressed to a 3 over time. So I SHOULD be able to get a 70TBI+70MDD+50-OSA+10Tinittus that would put me at +97% rounded to 100%. If this appeal only gets me 50% MDD the total would be 94% and round down to 90%. FWIW, my additive total would be 200% if I get the 70% for MDD, OR my total at getting only a 50% MDD would be an additive of 180%. The VA math would give me only 90% if my MDD is 50% OR 100% if MDD is 70%. HENCE my issue with my lawyer only wanting to do the TDIU and not the entire package/appeal. If I am correct the higher MDD rating could/should give me 100% +SMC, right? FYI ---- Copied Residuals and Secondary SC regulations below: 4.124a 8045 Residuals of Traumatic Brain Injury(TBI). ...[snip] Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings–mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” AND HERE 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 imaging Normal or abnormal Normal or abnormal LOC = 0–30 min LOC > 30 min < 24 hours LOC > 24 hrs AOC = a moment <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]