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Error In Denial

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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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