Error In Denial

[Sidney56]

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!

[Berta]

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.

[timetowinarace]

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 October 18, 2007 by timetowinarace

[Sidney56]

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).

[vaf]

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.

[timetowinarace]

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

[Sidney56]

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.