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Error In Denial

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Sidney56

Question

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 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

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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