K_C

@Navy04 Evidence is scant but there is at least a little, plus I can get a buddy letter from the driver. I am working on getting some kind of record of the accident, but so far it's proven more evasive than I expected it would be. I thought accident records would be relatively easy to get from the DMV or law enforcement. Apparently not. @jfrei It's not SC'd because I've never claimed it. I've had migraines since the accident, 14 years ago, but only recently started claiming any of my disabilities. I didn't even know veterans disability existed until about 2013, more than five years after discharge. Happy Thanksgiving.

@Navy04 I have a brain scan via mri ordered now. Though, I've read that brain scans are mostly meant to help treat immediately following TBI or treat very severe TBI. Years later a TBI isn't guaranteed to show any signs at all, especially a mild one. I suspect my TBI was mild and it happened 14 years ago, so unfortunately it probably won't help me. Definitely worth doing either way. @jfrei You didn't misread. There's no way for me to contact the other driver because I never even spoke with her and this was 14 years ago halfway across the world. I have been in touch with LE agencies as well as the state DMV trying to get records of the accident. So far, it's like pulling teeth, but there's still hope. The driver has also contacted his insurance company, but they said they wouldn't have record of it anymore. Thank you both for the info.

Sorry @broncovet, yes I understand about the in-service event now and believe it's manageable. I have my C-File and everything highly organized at this point from my other claim, I hope everyone reading this does the same--it's one of the most valuable pieces of advice out there. I will work on the diagnosis of TBI now that I understand it is necessary. Thank you for clearing up my confusion.

Thanks @broncovet I didn't realize that (an old TBI diagnosis can have a current diagnosis). I'll have to check with my neuro or IMO provider to see if this is something they can diagnosis currently despite the event being years ago. I did read that TBI can show on MRI, but diagnostic tests are not guaranteed to uncover a TBI. I have no diagnosis of TBI, ever. I have the in service event (auto accident) and some loose documentation in my service records (because I was having persistent issues with my eye and vision after the accident). I was a passenger, no alcohol or any kind of misconduct involved. The other driver was at fault too.

Thanks broncovet. I appreciate the info. This is my hang up: I need a current diagnosis of "Traumatic Brain Injury"? Is there even such a thing, since the TBI event was years ago? Like my analogy, if I broke my ankle ten years ago, but today have ankle problems, I wouldn't have a current diagnosis of broken ankle. This is where I am still confused. Do I need to ask my doctor to specifically diagnosis a TBI right now, or just draw a nexus from TBI event to migraine diagnosis?

I have a question about proving my particular TBI and nexus. Looking for any help. All advice is welcome. Thanks in advance. No in-service diagnosis of TBI Was a passenger in an auto-accident while on active duty, was unconscious for an unknown amount of time (likely 5-10 minutes), and both myself and the driver (who was also active duty) experienced what I now understand to be symptoms of TBI following the accident. Did seek medical attention for several weeks following the incident, and the auto accident is documented there. However, I was only seeking help for an eye and vision issue that persisted after the accident. We never even discussed other symptoms, just the eye issues. There was no diagnosis of TBI and I was never even evaluated for it. I plan on having a sworn statement from myself and the driver, and possibly a coworker/room-mate at the time, entered into the claim detailing the event and what followed. I have a photo of the front of the wrecked car, and another of the front with me and the driver kneeling in front of it, but they are not dated and I'm not sure if/what weight it has as evidence. I have been trying to get some record of the accident, particular one listing me as a passenger, but thus far it's been fruitless. I have reached out to all law enforcement agencies I believe would have covered that jurisdiction and they could no locate any record of the accident, though having more information for their search to begin with might help (such as the date and exact location). The driver of my vehicle was not at fault and therefore not cited, which seems to make it harder to find. The driver has contacted the auto insurance company he had at the time, but they no longer have any records. My currently-pending research is focused on obtaining vehicle history for his car, as well as his driver's record. He is fully cooperative in this endeavor. Knowing the above information, and given any experience you've had with scarcely documented events or similar claims, any advice on proving the event and TBI? Is there any evidence I already have that should be emphasized? Is there any evidence which could be harmful, or assertions I should avoid making that might muddy the waters? Is there evidence I don't seem to be considering that might be worth seeking out?

Hello everyone, This question feels incredibly silly, but it's stumping me. Would like to claim Migraine headaches due to TBI Not currently rated for TBI Not (currently) seeking anything related to the TBI other than migraines Are the migraines secondary to TBI, or Are the migraines directly service connected with TBI being the in-service event? If the migraines are secondary to TBI, how does one ever get a current diagnosis of TBI, seeing as it's an event sort of thing? Or, how do you work around this? In other words, if I broke a bone ten years ago I wouldn't be able to get a current diagnosis of broken bone, thus there is no "broken bone" disability. I would claim the actual disability that exists today, but referencing the broken bone incident as the alleged in-service event and cause. I imagine this is how it works with TBI; claim the current disability but reference the TBI as the in-service event and show nexus between them. Or, am I way off? Thank you in advance!

Wow, asknod, you never disappoint. It's worth loitering around here just to see your commentary on the VA, if nothing else. I decided to go with my attorney's advice on anything appeal-related (basically anything they represent me on). I do my research and I see a lot of great info here and there, but I sought highly-rated legal representation because I felt they could navigate the appeals better than I could, when push came to shove, so that's what I'm going to do--let go and let lawyer. I put the RO visit idea in their court to see what they advise. If they don't oppose it, I'm doing it. I have had success getting mistakes corrected by going up the VA chain before (on the VAMC side), so right now I can't see how this could hurt short of retaliation. If I get the go on the RO visit or advice from my attorney on why it's not a good idea in my case, I will report back.

Appreciate the responses. I have put all of the RO-level options I'm interested in in front of my attorney, but I'm confident that the path he chooses will be the best and have said I will follow his advice on the matter. I just have to wait for him to review everything and let me know which way we'll go. I'm interested in the idea of getting things done at the RO, but really only if there's a high probability it's going to get action in less than a year. I feel there's a more likely than not chance that the RO is going to spit out the same decision without much, or any, new investment in fact checking. So if it's something that is going to take a long time, I'd rather just be in line at the BVA I suppose. Thank you all!

On asknod's recent blog post on VBMS (VBMS–THE NEW ELECTRONIC FRONTIER-PART I) he suggests visiting the RO an attempt to speak to your rater, in person: Sounds interesting, but what are the chances that (1) I'll actually get the face-to-face with the rater and (2) that I'll be escorted out of the building by VA MPs as soon as I show up asking to speak to the rater? Okay, so I'm mostly joking on #2, but really, it seems like just another one of those situations where you'll be told to shove off, there's no way, Sir! I love the idea in concept, but what is the reality of the situation? How many have tried? Succeeded? Any suggestions for success? Any pitfalls to watch out for? Note: This is about a denial that happened in August in which I was not given a C&P, the decision reason is complete nonsense (gasp!); I now have an IMO that asserts my present condition exists, impacts work, and is more likely than not SC'd; and several new signed sworn declarations. Also, thanks to all who have helped me along the way. It has been invaluable to the successes I have managed to secure. Last post I was on the fence yet again about my VSO. I finally dropped him and obtained a real life attorney. (I've posted this here instead of asking directly so others might benefit from the question. I searched the forums but could not find an answer to all of my questions.)

Damn, 25+ years? I wonder if they're going to adjust it all for inflation. My wife has also wtfo'd me about my VSO, but I gave benefit of doubt. He's a nice enough guy, but his constant discouragement might make him a hindrance more than a help. I guess I have some more thinking to do on that. Thanks again for all the wisdom. This community is the single most significant reason I have succeeded as much as I have.

VSO says in-person hearing for a claim denial is 100% waste of time, that they do nothing but parrot the original decision (I'm paraphrasing), that they are not in any way obliged nor will they answer questions about specifics, and that they exist mostly just for adverse-action rebuttals. I even asked if I brought an attorney if that would change anything and he assured me it wouldn't. Wtfo... It seems nuts, but I've been surprised by the way of the VA more than once. The stage I'm in right now is original claim denial of conditions. Is an in-person hearing really as useless as my VSOs claims for this stage? EDIT: asknod, glad the CAVC got it right. I can't imagine how long that took, start to finish.

lmao... Well, DRO Reviews seem like they would be highly susceptible to that sort of 30-second-to-close temptation. But, a [DRO?] In-Person Hearing would have more potential for a win, no? Particularly if well prepared with organized evidence, contention arguments, and maybe even an attorney present? Can anyone confirm that one can request the in-person hearing before filing NOD? If so, is there a time limit on requesting it and is there a time constraint placed upon the VA to hold the hearing (in order to complete it prior to the 1-year NOD due date)?

Updated with changes previously mentioned.

Thanks broncovet. I am looking to make it accurate and all inclusive of the options. The order you see options isn't necessarily the order of preference, it's in order of most available options to least. That's why I have [OPTION] next to everything, so that it's clear this is just an option you have, but could continue further whether or not it's an option. I could draw an arrow from the termination point back to the next decision to make it clearer. IIRC, CUE was the only way you could appeal a claim older than a year, which is why I put it above the "older than 1 year?" decision. N&ME is next because it allows for you to choose whether you want to execute that option (N&ME) or you can choose any of those further down the chart. Then it's asking for a hearing (I'm actually not even clear on the pros/cons of this or if it's even an option outside of a NOD. The CFR made it sound like it might be?) Finally, at the bottom of the chart you're out of options, upward appeal is all that's left. That is, of course, if I'm not missing any other options which I probably am. Is the "order of available options" accurate? If so, would it still make sense to order it differently? What if an emphasized bullet point on the "CONS" list identified "Very difficult to prove" or something of that nature? Would that make it more obvious to us considering our options?

I started a diagram based on what I've learned from all of you and a little digging through the CFR. Is this in the right ballpark? I don't know how many others there are that overlook their options or don't understand what they can do, deadlines, etc., so if this can be corrected and refined it might be helpful to others and save everyone here from having to lay out the basic flow of things to others wandering souls such as myself. Thank you! P.S. What is a "simultaneously contested claim"? §20.501 Rule 501. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims.... [EDIT: Re-uploaded with white background] EDIT #2 - I'm particularly interested in missing options in this stage and any deadlines that I haven't noted. Thank you in advance.

Hi asknod, thank you for the info. I would not file for a scar that did not happen in service. I may be confused, but not that confused. The injury occurred in service (AD-USAF) and treated at the emergency room at Bassett Army Hospital. I supplied those records in the claim. As for the rateability, my interpretation of 38CFR Part 4 is that a painful scar can be rated regardless of size. There is no size requirement for a painful scar. On the contrary, as I understand it, a painful scar rating can be combined/stacked with other 78xx DCs for the same scar. 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful30Three or four scars that are unstable or painful20One or two scars that are unstable or painful10Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable Whether or not the VA follows these guidelines as written, I couldn't say. Perhaps there is an inside sentiment that if a scar isn't huge, it's not disabling. I will attest to the contrary. I have a friend who had surgery on his abdomen and was left with a sizeable scar. He readily asserts he'd rather have that than my tiny finger scar, because he's seen how much of a punch it packs. It tingles constantly and shutters with pain and intense tingling when struck or squeezed in certain ways (think funny bone but with a larger pain element). It makes use of the finger awkward in many situations, especially typing. That's why I have had this $300 keyboard for years which has a 35g actuation force. When you work in computers, a typing handicap is impactful. The scar is painful, there is a rating for painful scar specifically, it causes me trouble in my work [and life], therefore I will continue to fight for the correct rating until the highest authority on the matter renders a final verdict that the words in the CFR are not as they appear. IBS is admittedly more tricky. I was never diagnosed in service with either colitis or IBS. I got out in late 2008, in late 2010 I was hospitalized for my first severe colitis attack. In service, my complaints were always diagnosed as the complaint itself, somehow. So I go in with diarrhea, I get a diagnosis for diarrhea. Go in with abdominal pain, get a diagnosis of abdominal pain. Nobody ever dug deeper and I wasn't inclined to see doctors back then anyway. I was more into eastern/alternative medicine and didn't really pay much attention to my health. Hell, my diet was 30% Taco Bell, which also causes abdominal pain and diarrhea. Before I even considered filing the claim I asked my Gastro doc if the symptoms I had in service were precursors or signs of IBS, he believed they were. So again here I am with these signs but no diagnosis. I have readily found and read over several cases (not IBS in particular) in which in service diagnosis was not necessary. It does make it a tougher battle to fight, but it's not a 0% chance. Thank you for the link. Have it opened and will read it thoroughly. I'm still plenty confused about the difference between a request for reconsideration, a request on N&ME, a request for DRO hearing versus an NOD with request for DRO hearing, an MFR as mentioned by broncovet (first I've even seen the acronym), and perhaps other appeal routes I am probably simply ignorant of entirely. I'm not even confident I know how to request any of the above. The 21-4138 seems like the go-to for all but an NOD appeal? And don't get me started on choices when going the NOD route--my vague understanding is that it has several flavors/options of its own. I've never felt this baffled in my life. I wish there was an activity diagram for all of this. If I ever figure it all out, I'll be making one.

Thank you bluevet and broncovet. Yes, my claim was FDC but I initiated it July of last year. I didn't finish filing it until March, then they puled it out of FDC. There's potentially a lot of retro pay on the table, but I'm not as concerned about that as just getting it done. Ultimately, the FDC route is not a good option because I am preparing a single-condition rating increase FDC claim that I don't want to pile other conditions on top of. My thinking is maybe if it's just one condition, they'll devote enough time to it to better understand the details. Perhaps I could wait for the increase claim to complete then file it, but that feels like a lot of lost time that I could be in line for something else. What is an MFR (Motion for Review?) and how does it differ from a request for reconsideration based on N&ME?This is confusing... What exactly is a DRO appeal? My VSO previously clarified that a request for a DRO hearing is nothing but an NOD with a DRO election, and it takes just as long and actually delays the case getting evaluated. Was he talking about something else i.e. am I confusing two different things?BVA appeal is a last resort, basically. Yes. I want to avoid if at all possible.I don't imagine any of these options can be sought simultaneously, but figured I should confirm that is the case, yes? Thank you all for your patience.

Hi Berta, It's my first IMO. The formatting isn't fancy, but the rationale feels fairly solid. I don't know whose hands it will land in or how it will play out, but what I have I consider to be worth the price I paid. I would pay it again, regardless of how it gets treated at the VA by the first person to pick it up. If it winds up at the BVA, I feel the chances of it being given the weight it deserves increases. VAROs feel like wildcards to me.

Just noticed your edit. Well, I hope they don't attempt that in my case but I've learned that they're unpredictable. I might get someone who sees it and puts weight in it, I might get someone who dismisses it entirely or not even look at it (yes, I think this really happens). I'm backing it up with additional N&ME such as the sworn statements in hopes of hedging my bet. I also have one more medical record to add to the mix. I'll request the re-open/reconsideration based on N&ME and have a reminder in my calendar to file NOD by deadline. I'm open to all further advice and words of wisdom. Thanks again!

@lotzaspotz Sorry, it's an IMO. Though, he did have me send photos of my scar and I would not think there's much to examine with IBS, especially anything that I haven't already undergone (colonoscopy, many labs, multiple physician examinations, etc.).

Thank you lotzaspotz, pwrslm, and Berta. I have the IME report and it is favorable on both. It hits the key points I have seen mentioned on these forums--it uses the verbiage "at least likely as not", it lists the medical records reviewed, and it has a pretty thorough explanation of how the conclusion was arrived to. Dr. Bash provided it and I am more than satisfied with it. Are there any other pitfalls I'm potentially missing? I forgot to mention that I also now have five sworn declarations (two for the scar--including one from the sergeant that took me to the emergency room, and three for IBS) and one new medical record that I will include in my petition. I actually received two decision letters. Both are identical in decision, but the first one looks more computer generated. The second one has the old style decision letter with the seal at the top. Decision letter portions are shown below. First, the statement on the scar is flatly laughable. The laceration that caused the scar is plainly and clearly documented and was provided to them. Second, they do not mention specific medical records reviewed, except for 1--whereas I submitted 19 individual records. They surprisingly mention my statements in support of claim despite my knowing they did not read the first one. The first letter is my letter of explanation and a summary of my records (3/15/15). The other two letters were responses to their request for clarification (3/30/15)--which would have been wholly unnecessary had they read my first letter--and their pulling my claim out of FDC (4/30/15)... which they did because of their illegitimate request for clarification. With all this in mind, including the New & Material Evidence of IME and five sworn declarations, it sounds like the recommended route is a reconsideration based on New & Material Evidence. Is that correct? Is that exactly what it is called, because last time I asked for a reconsideration they said that meant I wanted an appeal, and then they didn't actually start an appeal, but also said I could no longer ask for a reconsideration when I finally pushed them for answers (~8 months later). If the suggestion is the reconsideration based on N&ME, that's exactly what I'll do, but I want to be sure I do it right. Am I asking my VSO to re-open the claim and giving him the new evidence? Should I submit a specific form myself via signature mail? Thank you again and apologies for my persistent confusion.

Hello all and thanks again in advance for the advice. I can engineer and troubleshoot complex enterprise and service provider networks, reclaim compromised systems, and develop robust web applications, but what I have not managed to do is understand and navigate the VA. It's like spaghetti in my mind that constantly gets stirred. The more I learn, the more confusing it gets. So, most recent claim I got a C&P for one condition but not for the other two, which were denied. I call it a Blind Denial because the reason they gave for the decision was obvious I did not even look at your claim material. Since the decision, I have acquired a favorable IME. There are a few things I know I can do, but I'm still not clear on the pros and cons of each, and that each offers its own benefits in certain situations. My primary goal is expediency and I am willing to sacrifice claim date, etc., to simply get a service connection and rating. I believe at least one of the denied claims is rock solid. As in, there's no way I can see a rational person could even approach denying it after having actually looked at it. The options I think exist (please feel free to skip this part, I'm just showcasing my ignorance really): NOD Appeal to BVA - Wait in line for years - Want to avoid as much as possibleAsk for local hearing? - I'm not actually clear on this, I've been told different things. Can I request a local hearing and actually get one in less than a year?Reconsideration - I think this is where there has to be New and Material Evidence, no? I'm not even sure if there are speed advantages here??? - I've heard of other things here and there, some I think are just different names for the same thing. Hence my persistent state of confusionIf someone has time and knows all the options I have at this moment, I would greatly appreciate a plain [for dummies] list of those options and their pros and cons/pitfalls in this context (or a general context)? If you were me and your primary goal was speed over all else, in which order would you personally pursue each option? If not, something also helpful would be a knowledge article or other forum post that covers the general options available immediately after an original claim decision is rendered (I have as of yet been unable to pin one down). Thank you in advance for your help. Best of luck to all on your claims. If your name was Mr. Lockheed Martin or Ms. General Dynamics, you'd have no issue squeezing millions out of the DoD in the name of patriotism. But us, well, on we fight!

My VSO said he would submit the request to update the effective date and could provide me a copy for my records. I asked for the copy days ago, no dice. Still feel apprehensive about letting him go. I can't help but feel like he's just too busy and I'm just being too demanding. He theorizes that the form that gets put into the system by eBenefits when I opened my claim was "cleaned out/deleted accidentally" by the rater/rep that went through deleting duplicate DD-214s that were in the system as they complained about there being "100's" of them. I have the email receipt in my personal inbox, and the message receipt in eBenefits showing the claim being started on the date I assert. So, opening a ticket in IRIS has a chance in hell of actually getting this looked at? Does this seem like something to file a CUE for?

@bluevet, I tried the number for Alice Burns a bit ago and it says disconnected. I too am trying to retain Dr. Bash's services but haven't received response yet. If you get a chance, please double check the number you gave. It would be sincerely appreciated, sir. Also, I am interested in Tomahawk's question. Will Dr. Bash or Dr. Ellis require an in person exam? If that's the case, I need to find someone local.