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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Dave C

Returned Rating With Many Mistakes

Question

I filed a claim for TBI and residuals on 10/7/08. I have been given a rating of 10%. My first TBI (concussion) is from an auto accident that occured in 1975. I included the results of a neuropysch exam that states from the examiners point of view that I suffered a moderate TBI. I also had 2 other occurances where I received blows to the head. In my rating decision the VBA only used language to describe the 2nd or 3rd incident of head injury. They denied essential tremor as a result of head injury in 1975. So what they have done is skip the documented results of the first TBI when applying the facets of the new rating laws. They did not address the neurobehavioral aspect or my statement of claim where I asked that I be evaluated for depression as a result of the documented (and sent to them) evidence. I also asked in my statement that I be considered for exacerbation of pre service condition prior to entrance to service as I was trested for ADHD with ritalin, they also ignored that and didn't address it. I am ready to file a de novo review and feel like I should request an informal review hearing any suggestions are appreciated thanks Dave

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TBI claims are complicated. I don't completely agree with the way facets are rated. Considering there are ten facets, each with it's own rating criteria, and the end rating is the highest rating of ONE of the facets. In the end, we are rated for one of our residuals under DC8045. We do not get rated for the total of the facets. This is a long statement to say, some of the things they missed may or may not help with your over-all rating under 8045.

The higher ratings tend to come from neuro-psych testing. Without reading your test results, I couldn't hazard a guess as to a rating. I also can't tell if the examiners finding of moderate TBI is a comment on the type of tbi at the time of injury or meant as functional impairment. Mild, moderate, severe TBI designations are often used to descride the type of trauma at the time of the injury and are not used for rating purposes. Mild, moderate and severe functional impairment is what is being looked at for rating purposes.

Do you have a copy of the tbi C&P? This will give you more insight to how each facet was assigned.

It's not uncommon for the VA to ignore other conditions when they have rated one. You need to appeal the depression and make them address it. I'm not sure I would pursue the exacerbation of ADHD. The main reason is that memory and attention deficits are included in the first facet of the rating criteria for tbi and will be considered anyway. I would think that it would have been better if VARO did not know about the pre-service condition. Often times, they will use such a condition to deny or lowball a claim.

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I filed a claim for TBI and residuals on 10/7/08. I have been given a rating of 10%. any suggestions are appreciated thanks Dave

Dave C,

It would be helpful if you could scan or post the exact parts of your rating decision that are listed as:

REASONS AND BASES SECTION.

Be sure to leave out your SSA # - real name & address etc...

carlie

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Dave C,

It would be helpful if you could scan or post the exact parts of your rating decision that are listed as:

REASONS AND BASES SECTION.

Be sure to leave out your SSA # - real name & address etc...

carlie

OK here is what the Reasons for decision says in full on the returned claim. Notice they have not addressed the nuerobehavioral facet at all.

1. Service connection for residuals of traumatic brain injury.

We have granted service connection for residuals of tramatic brain injury because service treatment records show you were hit on side of head, one blow to each side with completes of severe headaches. (the mispelled are as the VA wrote it) Records show that you sustained a laceration to back of the head.

The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicible facets. A higher evaluation is not warranted unless a higher level of severity is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated seperately.

A level of severity of "1" has been assigned for the memory, attention, concentration, executive functions facet, indicating that an examiner has found evidence such as a complaint of mild loss of memory,(such as difficulty following a conversation, recalling recent conversations, remembering recent conversations, remembering names of new aquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. A higher level of severity of "2" is not warranted unless an examiner finds evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.

We have assigned an effective date of October 7, 2008, date of receipt of your claim.

A level of severity of "1" has been assigned for the subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living; or work, family or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to light. A higher level of severity of "2" is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work family or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days.

The evaluation assigned for cognative impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facet. The evaluation assigned is 10 percent based upon the highest level of severity level of "1" which was assigned for the following facets: memory, attention, concentration, executive function; subjective symptoms.

This is all that is written there are no refrences to the other facets such as the neuro behavioral.

They also worded the following which refers to my claim of essential tremor as secondary to the service connected disability of traumatic brain injury.

Service connection may be granted for a disease or injury which resulted from a service connected disability or was aggravated thereby. VA treatment notes and VA examination do not show that essential tremor is related to the service connected residuals of TBI, nor is there any evidence of this disability during service. VA examiner reviewed your claim folder and provided an opinion that essential tremor is less likely caused by your TBI since onset of essential tremor was in 1997, 22 years after the TBI in 1975.

So what they have done is not complete because they didn't address the neurobehavioral facet and that they used a TBI that occured scondary to the initial TBI which caused me the most damage in 1975. The TBI the VA refers to at first in the response happened AFTER the TBI they acknowledge happened in 1975 which in my SOC I told them what happened to me neuro behavioral wise after the FIRST TBI which was in 1975. They haven't even addressed the Neurobehavioral facet for any of the concussions.

Thanks for your help any suggestions are welcome Dave

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Dave C,

It would be helpful if you could scan or post the exact parts of your rating decision that are listed as:

REASONS AND BASES SECTION.

Be sure to leave out your SSA # - real name & address etc...

carlie

I also wrote this note to the VA using the IRIS system and received a response which I will post here also

this is what I wrote VA:

I have received a decision on my claim dated 11/13/2009 The claim was received by VA on 10/07/2008. My first question is whether the claim was decided on the regulations in effect on 10/07/2008 or if the claim was decided on the new guidelines in effect after 10/23/2008 (TBI). Also my second question is about the rating decision itself, there is no mention of nuerobehavioral effects secondary to or as a direct result of TBI. I have several symptoms of the Neurobehavioral effects described in the new regulation. Do I ask for a denovo review of the claim or do I submit a claim for increased rating? I state that under current regulations that I have several of the facets described under the neurobehavioral effects section and that they interfere with or preclude workplace interaction social interaction or both on most days. The effects I have are lack of motivation, verbal aggression,belligerence, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Do I appeal my recent rating or do I submit a claim for increased rating since I was awarded 10%. I do not know if I was rated under the existing law in effect as of the date of claim (10/07/2008) or was rated under the law changed on 10/23/2008. Please let me know and any suggestions would be appreciated thank you

And their response was :

Thank you for your inquiry submitted on November 23, 2009, to the Department of Veterans Affairs.

Our records show that your claim was decided by using both the old and new regulations for TBI.

To have the conditions you have listed for your neurobehavioral effects secondary to or as a direct result of TBI would need to be submitted to the regional office as a claim for increase, not an appeal.

We have forwarded your inquiry to the Oakland Regional Office as an informal claim of increase for the conditions you have listed. Once the regional office receives this inquiry they will begin processing a claim for increase for you.

Thank you, for your service to our country and Happy Holidays!

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

E. J. Kruse

National IRIS Response Center Manager

lar

So now I wait to hear from the regional office or call them to see what status the claim is in. I wonder if the increase in rating would be retroactive to the original date of claim. Thanks in advance for any feedback. Dave

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Dave C,

It would be helpful if you could scan or post the exact parts of your rating decision that are listed as:

REASONS AND BASES SECTION.

Be sure to leave out your SSA # - real name & address etc...

carlie

I replied and wrote out the reasons as asked I have yet to see it come back up in this thread wondering if I should do it again ??

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