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!

[Sidney56]

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

[cloudcroft]

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 October 18, 2007 by cloudcroft

[cowgirl]

Berta and Time, from what I read regards this mood disorder and brain injury, the advice is to submit a correction letter post haste. Do I understand that its acceptable to submit the correct issue to the RO claim/appeal and clarify that the other issue should be considered as a secondary condition?

In the 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 request was worded incorrectly.

Sure hope this works for Sydney!! prayers.cg

This discussion is close to home for me, I had requested PTSD instead of PTSD w/MST. Your thoughts? Claim was denied few years ago and have been working on how to submit for correct SC. Also on original claim many years ago, request not worded well though.

Edited October 19, 2007 by cowgirl

[timetowinarace]

Berta and Time, from what I read regards this mood disorder and brain injury, the advice is to submit a correction letter post haste. Do I understand that its acceptable to submit the correct issue to the RO claim/appeal and clarify that the other issue should be considered as a secondary condition? Sure hope this works for Sydney!! prayers.cg

This discussion is close to home for me, I had requested PTSD instead of PTSD w/MST. Your thoughts? Claim was denied few years ago and have been working on how to submit for correct SC. Also on original claim many years ago, request not worded well though.

The reason I suggested doing it this way is because the VARO recieved evidence of a ratable condition. (at least in my opinion, anyway) Even if they cannot apply this evidence in the way it was requested, if it is a ratable condition they are supposed to consider this evidence as an informal claim and apply it correctly as such. The effective date of an award will be the date they recieved the evidence.

I know this first hand because my initial diagnoses and rating was for undiagnosed fatigue. I had filed for MDD secondary to this condition when a C&P Psychiatrist atributed ALL of my symptoms to my head injury, thus I was denied the claim. I appealed and kept the claim open while I followed up on this new diagnoses (testing and whatnot). When I was awarded I recieved the effective date of the origanal claim even though the claim was for a different diagnoses. The reason is because, by Law, if the VARO recieves evidence of a ratable condition IT MUST BE CONCIDERED AN INFORMAL CLAIM. Veterans are not to be expected to be VA Law and medical experts so they are supposed to be able to count on the VA if they make mistakes like this. We know this is not the way the VA actually works, but it is supposed to. So, if we send a letter explaining that the evidence should be applied correctly they should do so. Hopefully we avoid a fight with them over the effective date.

I hope that somewhat explains it and I hope it helps you. In your situation I don't know what evidence the VARO had at the time. The evidence in their possesion is key.

Time

Edited October 19, 2007 by timetowinarace

[cowgirl]

Time, thank you so very much for helping me process the intricacies of my thoughts! You must be a mind reader, somehow I must reviewed the very same words you have used in response. Over and over again, I wondered if I couldnt formulate the exact medical terminology that fit their data, couldnt they somehow see that I had a valid claim considering all the valid data attached? Been wondering why for years how one word or two would reduce my hopes to the bottom of the can, thinking all for naught. I will process this train of thought and will probably bring more questions, yours,cg

[Sidney56]

Thank you cowgirl for your prayers....mine are with you also. When dealing with the VA(beast), what better allie to have, than the One that defeats all beast! God is the only One that I know the VA will not, can not ignore.

Thanks Time for your advice, makes sense to me. I will try to put together a letter today to the best of my ability. I want the wording to be correct, stating exactly what the case is without any room for misinterpretation.