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Error In Denial


Sidney56

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I am hoping that someone can shed some light on this situation. I am in dire need of some help! I was rated for a traumatic head injury for 10%. That rating was increased to 20% for residual effects of head injury. I filed a NOD for an increase in my rating considering new evidence from VA doc and independent doc. Submitted new evidence with filing. I was denied on the basis of the head injury and not mental condition as requested. Following is excerpt from SOC.

DECISION:

The initial evaluation of 10 percent for residuals of head injury to include claimed headaches, sleep problems, blurred vision, and memory loss is proper.

REASONS AND BASES:

Rating decision of 03-22-06 granted service connection for the residuals of your hrad injury because your service medical records show treatment after you had a loss of consciousness.

During the VA examination conducted on 02-08-06, you reported a history of striking your head with subsequent unconsciousness in 1974. You stated that you have had headaches since that time. YOu described constant headaches that are aggravated by bright light and stress. The neurological examination was normal. Theexaminer stated that post traumatic headaches were not foundon the examination.

The medical record from Dr. Jabbour shows a reported history of a sustained head injury after you fell off a flight deck of the aircraft carrier while you were in the service. After the mental status examination was conducted, Dr. Jabbour diagnosed mood disorder due to general medical condition and cognitive dysfunctiondue to gerneral medical condition and alcohol dependence. He stated that you developed mood instability along with a change in your cognitive fuction, loss of concentration, and loss of function from the head injury.

Risiduals of head injury are evaluated based on the neurological disabilities or based on the subjective complaints. Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code.(e.g., 8045-8207) Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excessof 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absense of a diagnosis of multi-infarct demetia associated with brain trauma.

The evidence of record does not show that you have neurological disavilities that have been attributed to your head injury. Thus, the residuals of your head injury are evaluated on your subjective complaints. The initial evaluation of 10 percent is proper nased on your subjective complaint of headache as a result of the head injury.

The evidence of record does not show that you have been diagnosed with mult-infarct dementia associated with brain trauma as a result of your head injury. Thus, a higher evaluation is not warranted.

I did not request a rating on my head injury, but on a the diagnosed mental condition. Isn't this erroneous on their part? I filed a form-9 and was told that it will take 2-5 years to reprocess. I will be homeless by then. Is there anything I can do to expedite this process. I have contacted my Congressman and Senator, but I am getting the impression that they can't do anymore than I can. HELP!

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I am hoping that someone can shed some light on this situation. I am in dire need of some help! I was rated for a traumatic head injury for 10%. That rating was increased to 20% for residual effects of head injury. I filed a NOD for an increase in my rating considering new evidence from VA doc and independent doc. Submitted new evidence with filing. I was denied on the basis of the head injury and not mental condition as requested. Following is excerpt from SOC.

I did not request a rating on my head injury, but on a the diagnosed mental condition. Isn't this erroneous on their part? I filed a form-9 and was told that it will take 2-5 years to reprocess. I will be homeless by then. Is there anything I can do to expedite this process. I have contacted my Congressman and Senator, but I am getting the impression that they can't do anymore than I can. HELP!

Your a victim of outdated US Code.

(Ratings in excessof 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absense of a diagnosis of multi-infarct demetia associated with brain trauma.) This is Law. The fourth paragraph under reasons and basis in your decision is taken directly from title 38.

There are two ways to get around this. I fully understand your situation since I am rated under this criteria.

1. Any and all mood disorders should be filed as secondary to the SC brain trauma. If they are filed as part of the trauma the are residuals and do not warrent a rating over 10%. But, if your symptoms due to the injury are causing depression and/or anxiaty they may be rated as secondary with thier own seperate diagnostic code. Thus a higher rating.

2. It is likely that you have the needed multi-infarct dementia needed for a higher rating. This is the mental problems you may have such as memory problems, cognative problems, ect. There are two ways to get this diagnoses. One is the literal multi-infarcts that show on CT or MRI. Infarcts are little dead spots of brain cells most commonly resulting from tiny bleeds. Multi is simply through-out the brain. However these are most often too small to see on CT so neuro-psychological testing is more commonly used to detect this type of damage. The diagnostic code for this is (9304 Dementia due to head trauma) It is rated under the General Rating Formula for Mental Disorders. This is my rated diagnostic code.

The reason for all this is simple. Not right, but simple. No one can see how we feel. They cannot feel what we feel. They only know what we tell them, therefore we are suspect for excageration and/or malingering. The neuro-psych testing proves without a doubt that our brains are damaged. I strongly suggest getting a neuro-psych evaluation by private means. Get it in writing that your deficits are caused by brain trauma and how it effects your ability to function.

welcome to hadit

Time

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Not seeing the exact words you used when you submitted your claim for a rating increase and going by the little info you give here and what the VA said in its denial letter, I assume that you have no SC for any mood disorder. Consequently, since it isn't SCed, the VA can't increase any rating on it, because it "doesn't exist" yet. Or they just misunderstood what you wrote/asked for...I don't know. Maybe I am misunderstanding you.

As for the brain injury, they have rated you at 20% (originally 10%) which is as high as they can given what the criteria is for anything higher, so this is a dend end. As you probably have concluded then, your best route now is to develop a mood disorder claim.

Consequently, if you haven't gotten any mood disorder SCed yet, you need to do so.

Assuming you do NOT have any mental (psychiatric) disorders SCed yet, file another claim for that now and state whether you are (1) claiming it as secondary to the brain injury or, (2) claiming that it developed from some other cause...while in the service, of course (not before the service or after the service). After you get the mood disorder SCed (what exactly it's diagnosed as remains to be seen), even if it's only 0%, then you can seek to increase the % later on.

But the brain injury issue is closed IMO because (1) the VA is treating it as a physical disability and that's all you'll get for it and (2) you wanted a mood disorder ruling anyway. So why appeal it because it will be appealing the wrong issue and just continuing the confusion?

I would say ask for a reconsideration, if it's just a simple misunderstanding, but if you have no SC for a mood disorder, you need to get that first.

Good luck,

-- John D.

P.S. As usual, it took me so long to write my response that "Time" responded first, but I'll let it stand anyway.

Edited by cloudcroft
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Thank you Cloud and Time for your speedy responses. At least I now know that there is someone somewhere that cares!

Timetowin I was given a neuro-psych evaluation at the VAMC in 12-06, but I don't know what if any bearing it has. Are you suggesting that I still seek a private consult. Is there any way I can have you to take a look at the evaluation notes from the psych eval. at VAMC?

When I submitted form VA 21-4138, I requested an increase for my mental condition based on an attached IMO report from Dr. Jabbour. Following is his Diagnostic Impression:

AXIS I: Mood disorder, due to general medical condition and cognitive dysfunction due to general condition and alcohol dependence.

AXIS II: Not done.

AXIS III: History of closed head injury and hypertension.

AXIS IV: Financial problem and inability to keep a job, problems with primary support group.

AXIS V: 32.

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Your welcome Brother. We're here to help.

I can look over your evaluation if you'd like. My e-mail is timetowinarace@webcomet or you can send it in a pm.

from what you've posted so far though, you have what you need.

"The medical record from Dr. Jabbour shows a reported history of a sustained head injury after you fell off a flight deck of the aircraft carrier while you were in the service. After the mental status examination was conducted, Dr. Jabbour diagnosed mood disorder due to general medical condition and cognitive dysfunctiondue to gerneral medical condition and alcohol dependence. He stated that you developed mood instability along with a change in your cognitive fuction, loss of concentration, and loss of function from the head injury."

this IS dementia due to trauma. especially if the neuro-psych report was used to come to this conclusion.

Sorry but I also have cognative disfunction and will have to think on this for a bit. It may be that the rater does not know what this eval means. Non of my evals actually say the words "multi-infarct dementia". They say cognative dysfunction.

Time

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I think that Dr's opinion is quite good-

did he elaborate on his medical rationale and also what are his medical qualifications? Psychiatrist ?

or neurologist?

Edited by Berta
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Thanks Berta for your response. He is a psychiatrist. He gave me a detailed summary of his treatment to submit to the VA. I submitted the report with the NOD that was denied. I don't think they considered the report, that is why I filed a form-9. He actually asked the VA to set up a neuro-psych eval. I am presently not seeing him, because I can't afford the fees.

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"I submitted the report with the NOD that was denied" do you mean you got a SOC after filing the NOD that denied the claim?

Did they refer at all to this IMO?

Did you get prior to the denial a legal VCAA letter telling you exactly what they wanted and also- enclosed with it was an election form and you had to check off Box 1 or Box 2, sign, copy and then return to the RO?

I am in same boat- the VA ignored my IMOs from 2004-

they 'disappeared' when my POA said he would present them to a DRO during a conference on my claim.

After more submissions- the VA in Dec 2006 said they never received them-

I had received an illegal VCAA letter in 2003 and no election notice.

When I recently got the first real VCAA letter and election notice in late August 2007-I had to again attach all of my IMOs etc.

When my POA got copy of all this they revoked my POA.Oct 2nd.

The General COunsel has received my 23 page complaint about this revocation (illegal under Rule 608)and significant other errors they made as my POA and will take care of that-

BUT the good part is as soon as VA got the election form I sent in Sept -the claim went to a claims specialist and to a DRO -the day after my POA was revoked.

I am beginning to realise that -the VA did not consider my medical evidence-because my POA made sure they would never see it.

They had no time to interfere with my c file when I responded to the VA on the recent election notice.

I sure hope that you got this notice and sent it to VA- claims can lay around in limbo for years without the proper notice returned to them.

I believe they will continually deny any valid claim if the vet has failed to send them the election notice.

Of course if the RO doesnt send it to the vet in the first place- they have assured that this is a claim they wont have to spend time on.

Edited by Berta
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"I submitted the report with the NOD that was denied" do you mean you got a SOC after filing the NOD that denied the claim?"

Yes, I filed a NOD for my "mental health" condition on August 30, 2006 Exhibit A(Dr. Jabbour's assesment). The RO replied with a SOC August 1,2007 for my "head injury" condition.

"Did they refer at all to this IMO?"

EVIDENCE:

~ Service medical records for the period of service

~ Veterans Claims Assistance Act notification letter dated 01-26-06

~ VA examination conducted on 02-08-06

~ VA notification letter dated 03-20-06

~ Medical records from Central Carolina Hospital from 03-18-04 to 03-23-04

~ Medical records from VAMC- Fayetteville from 02-12-01 to 09-27-06

~ Medical record from Dr. Jabbour dated 07-21-06

ADJUDICATIVE ACTIONS:

08-30-2005 Claim received.

03-22-2006 Claim considered based on all the evidence of record.

03-22-2006 Claimant notified of decision.

09-27-2006 Notice of Disagreement received and traditional appeal process election received from appellant.

Did you get prior to the denial a legal VCAA letter telling you exactly what they wanted and also- enclosed with it was an election form and you had to check off Box 1 or Box 2, sign, copy and then return to the RO?

The only VCAA I have received is the one stated above dated 01-26-06. Is this what you are referring to?

Again, thanks Berta for your input. You don't know how much this means to me, to finally get someone that will at least listen.

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Berta,

I believe the problem here is that he filed for increase of his current SC condition of:

8045 Brain disease due to trauma:

Purely neurological disabilities, such as hemiplegia,

epileptiform seizures, facial nerve paralysis, etc.,

following trauma to the brain, will be rated under the

diagnostic codes specifically dealing with such disabilities,

with citation of a hyphenated diagnostic code (e.g., 8045-

8207).

Purely subjective complaints such as headache, dizziness,

insomnia, etc., recognized as symptomatic of brain trauma,

will be rated 10 percent and no more under diagnostic code

9304. This 10 percent rating will not be combined with any

other rating for a disability due to brain trauma. Ratings in

excess of 10 percent for brain disease due to trauma under

diagnostic code 9304 are not assignable in the absence of a

diagnosis of multi-infarct dementia associated with brain

trauma.

His neuro-psych reports state specifically the he does not meet the criteria for a dementia diagnoses. He cannot get a higher rating under his current diagnostic code. This is why he was denied an increase because he does not have a rating for a mental disorder.

However, His psychiatrist report and neuro-psych report diagnose him with mood disorder, cognative dissorder and link it to his SC brain trauma. I believe his claim for increase should have been a claim for the secondary condition.

Thoughts?

Time

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So I can get some clarity to this....what you are saying is the wording on the 21-4138 was wrong:

ISSUE

Increase rating for mental health condition.

STATEMENT

I request a rating increase fr my mental condition, based on the attached medical report from Dr. Jabxxxx

................................................................................

...............................................................

Form -9 wording:

ISSUE

Increase in rating for mental condition

STATEMENT

I filed a Notice of Disagreement for my "mental health" condition on August 30, 2006, Exhibit A. The RO replied with a SOC for my "head injury" condition.

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Sidney:

I have commented so far but I want you to know I hope that you prevail.

Good Luck

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Sidney:

I have commented so far but I want you to know I hope that you prevail.

Good Luck

Thanks Pete! You guys are very helpful. I wish I had found this site earlier, I probably wouldn't be in the situation I am at the moment.

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Time- yes I see just what you mean-you are right-

If the 4138 was not specific and a vet rep wrote it- I think they are the ones who need to clarify that with the RO.

It looks as if- the mental condition was not formally claimed-thus they did not use the IMO to support that.

VA is supposed to really read claims good to make sure each issue is addressed-

You or your vet rep should clarify that you claimed- as Time said- a mental condition due to the service nexus.

It is important to get this straightened out.

I had to clarify my issues for the 3rd time recently with VA-

I wrote directly to the VSM in 2006 and sent her reply recently to the RO to get it squared away.

I found out today that they have put my CUE claims on hold but the DRO actually has had my main AO claim for over a week-with all of my IMOs and other medical evidence-as well as this VSM letter and my response to it-I have waited for 4 years to hear that.

Any incorrect info or assessment of the basis a claim by the RO must be challenged ASAP.

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So I can get some clarity to this....what you are saying is the wording on the 21-4138 was wrong:

ISSUE

Increase rating for mental health condition.

STATEMENT

I request a rating increase fr my mental condition, based on the attached medical report from Dr. Jabxxxx

................................................................................

...............................................................

Form -9 wording:

ISSUE

Increase in rating for mental condition

STATEMENT

I filed a Notice of Disagreement for my "mental health" condition on August 30, 2006, Exhibit A. The RO replied with a SOC for my "head injury" condition.

In short, yes. You need to SC the mental condition. Officialy you don't have a rating for a mental condition. So the VARO (wrongly) applied the request for increase to your current SC condition witch cannot be increased. They should consider the request a claim for your mood disorder as secondary to your brain trauma. Your medical evidence supports this. (in my view)

These brain injury laws are confusing and uses the assumption that the veteran is excagerating. Subjective complaints mean that you say you have these problems but can't prove it. Since we can't prove that we have headaches, dizziness, weakness, fatigue, or any number of symptoms common to the injury, we are limited to a 10% rating. No matter how sick we are. Unless of course we can prove through testing that we have dementia.

If we can't prove dementia, The only way we can get a higher rating than the 10% is if we have secondary mood, depresive, anxiaty dissorders due to the effects of the injury.

I think you need to clarify that you are claiming your mood dissorder as being secondary to your SC condition.

Because of the confusion of these laws I'm hoping someone else can confirm my opinion or have other ideas.

Oops, I'm too slow. Thanks for your reply Berta.

Time

Edited by timetowinarace
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Thanks my friends for your helpful replies....I just finished talking with a lady on the 1-800 #, and she said that I should write a strong letter to the RO explaining what I am asking them to rule on, if not they will dening based on the head trauma. I called my VSO officer and he said I will have to stop my appeal to do that. If I stop my appeal I will forfeit all retro, want I? She did not say anything about stopping the appeal, but only to write a letter ASAP.

I think I'm becoming confused(not hard to do for me).

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If there is memory loss, learning difficulties, attention span problems, sudden mood swings, etc., dementia may be the problem due to the injury (also caused by illness, which is my husband's situation), and the veteran can be tested to prove it and the degree to which it has advanced.

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Thanks my friends for your helpful replies....I just finished talking with a lady on the 1-800 #, and she said that I should write a strong letter to the RO explaining what I am asking them to rule on, if not they will dening based on the head trauma. I called my VSO officer and he said I will have to stop my appeal to do that. If I stop my appeal I will forfeit all retro, want I? She did not say anything about stopping the appeal, but only to write a letter ASAP.

I think I'm becoming confused(not hard to do for me).

I don't agree with the VSO. Stay with the original appeal.

In your letter to the RO, explain that the medical evidence should have been considered an informal claim for the secondary condition. This will keep the effective date. This is what the evidence supports even if your request was worded incorrectly.

Time

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Yes, Yes.....thank you so much J.C....that is what I wanted to hear. Man, I have learned more on this board today, than I have messing with VSO's for years! I actually feel like I can get some things done now, and that people care and are being truthful.

If anyone has a draft of a letter that will be sufficient for this situation, I would greatly appreciate a copy. Not very good at composing letters that get results.

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Berta,

I have been following your post on the board, and I am so impressed how knowledgeable and helpful you are. You commented on my solicitation for help, and I thank you so very much! I'm not sure if this is correct board etiquette, but I am trying to compose a letter to my RO to get them to consider my submitted appeal for mental condition (IMO report as evidence) as secondary to my primary rating of traumatic head injury. If you have such a letter in your arsenal, or can direct me to one, I would be most appreciative.

Thank you

Sid

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Sidney,

If you stop the appeal -- which you won't win anyway because, even by your admission, it's the wrong issue and, going by the VA's reasons why they wouldn't increase it, I don't see a DRO or the BVA REVERSING that decision, which means more denials -- then how can you lose any retro? You only get retro if you win a claim, not if you lose it. If you think you CAN win your present claim, then by all means persevere. If not, dump it and start over.

If you file a new claim for mood disorder, to get it SCed, and you win THAT claim down the line, you will get retro from NOW until you win, however many months it wil take.

So you have to decide whether you want to appeal what seems to be the wrong issue and probably get denied all the way down the line (wasting months or years), OR, convince to VA to "switch it over" to the RIGHT issue (so you can keep your EED) and rule on a mood disorder (and send in your doctors statements on same), OR, open up a new claim NOW to get your mood disorder SCed and forget about the somatic brain injury issue.

Your choice.

Good luck,

-- John D.

Edited by cloudcroft
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