ptsd Reopening A Tbi Claim After A Year

[unclaoshi]

5Hi everyone. This is my first post here and but I have been following some of the topics on the forum and have found a lot of useful info. SO right now Im rated at 60%, 30% for PTSD, 10% for tinnitus 10% for an ankle injury and 10% for a shoulder problem. I had claimed TBI from when my vehicle was directly hit with an IED, it was denied due to no evidence of a TBI existing. After the exam I was refereed to neurologist. I went to the neurologist and did the testing, this was back in 2008. I figured that I would have heard something or had some sort of follow up if I had TBI. Well anyways a few weeks ago I ended up pulling all of my medical info because I am meeting with a DAV VSO. I was looking through my records and saw the VA did not have the results from the testing in my record. I ended up going to the hospital and got a copy of the test results and the doctor put in it that he was concerned about possible underlying mild traumatic brain injury and on the following page "Current findings are consistent with diagnosis of a mild traumatic brain injury, yes. . Its hard because a lot of the residual effects I have also seem to cross over with PTSD. Oh yes I also forgot one thing that doesnt cross over into the PTSD symptoms are I get horrible migraines 3 or 4 times a week and they always feel like they are in the same spot each time, right above my left eye and there is nothing I can do to make them go away. So Im looking for any advice on this for when I go to talk to the VSO. Should I ask for the claim to be reopened or a new evaluation and anything else I should arm myself ( I currently am bringing my medical records, the copy of the TBI test results and my c-file)with them I present her with all this information. I honestly, from what I have been read feel that I got low balled on my claim, I also have had 3 other denials like flat feet, I joined the army and didnt have them my arches collapsed. I claimed them the C&P exam said I didnt but they gave me a referral to a podiatrist for something else and she said that I did indeed have flat feet. Sorry its just frustrating and I know I should not have waited 3 years to check my test results but I wish I had know then what I do now about how screwed up things can get and how claimed get denied. Any advice is appreciated and sorry about the long rambling post.

[carlie]

So far, from what you have posted - the claim for migraines on

your 21-526 sound like an unadjudicated issue, which could still be

a pending issue.

Be absolutely sure it's not mentioned anywhere in the narrative

of the Reasons and Bases Section.

[unclaoshi]

So far, from what you have posted - the claim for migraines on

your 21-526 sound like an unadjudicated issue, which could still be

a pending issue.

Be absolutely sure it's not mentioned anywhere in the narrative

of the Reasons and Bases Section.

Ah after re-reading it I saw that they had listed the headaches as they put it under the TBI section and denied it because the exam was negative for TBI that the VA gave me and ruled before I saw the doctor at the other hospital that said I did have it and recommended the other testing. When I was out processing the guy that was helping us with out processing, claims forms and VA benefits made sure to put down the migraines and the TBI both as separate items so was it right to have them lump them together? Also with the TBI symptoms a lot can be similar to PTSD symptoms so how does that work when they review claims?

[timetowinarace]

Ah after re-reading it I saw that they had listed the headaches as they put it under the TBI section and denied it because the exam was negative for TBI that the VA gave me and ruled before I saw the doctor at the other hospital that said I did have it and recommended the other testing. When I was out processing the guy that was helping us with out processing, claims forms and VA benefits made sure to put down the migraines and the TBI both as separate items so was it right to have them lump them together? Also with the TBI symptoms a lot can be similar to PTSD symptoms so how does that work when they review claims?

Good catch Carlie.

Well, that complicates things a bit more.

Headaches can be included as a residual of TBI claim. They can also be rated seperate even as a residual. It is far better for them to be rated seperate as they(migraines) will add nothing to the percentage of a TBI rating in most cases though they are included with the residuals. The way the TBI rating works for residuals of TBI there is a list of possible residuals with a degree of functional impairment for each one. The total of a granted rating is given as the highest residual. So, if migraines were equal to or is lesser than another residual(symptom) such as cognative disorder, the headaches will technically add nothing to to the rating.

That is why I suggested filing for the migraines now, as a seperate claim. You might still want to do this.

When the VARO denied the TBI claim, they probably should have rated the migraines. You needed to have NOD'd on the migraines on the grounds that though the TBI was denied for lack of evidence, the migraines are still present(don't need a TBI to have migraines).

Tbi and PTSD do over lap on symptoms. The old way, you would recieve one rating for PTSD and Dementia(cognative disorder) if both were present and a 10% rating for residuals. I am rated under old code with one rating for depression, anxiaty and dementia due to trauma.

The new way, cognative disorder rated like a residual under 8045. It is very important to have the testing we've discussed because, 1. it will prove(or disprove) TBI and 2. you cannot be rated higher than 40% for cognative(memory proplems ect) without the testing.

[unclaoshi]

Hi everyone. I thought I would maybe do a quick update. I met with my VSO and the meeting was good. The information I got here was great for helping me get prepared. She found two mistakes that the ratings board made that can be reopened, two for supplemental claims and somethings I thought I got denied for actually were service connected but just rated at 0% so that was good news to hear. We are waiting until I am done with my next doctors appointment in July before anything is filed.

[Philip Rogers]

I'd be cautious about "reopening" a claim. I don't see a reopening necessary, at this point, because if you do you lose your EED. As I see it, if that Dr did that testing within one yr of their denial you can argue that the VA failed to re-rate, your claim, based on the evidence they had in their possession. Any evidence held by them, no matter where it is held, needs to be considered. Often the VA makes a decision prior to all the evidence being there, even tho, you have a yr to get it in. VSO's rarely know what they are doing and that's because the VA trained them that way. I suspect your VSO is one with very little knowledge, if she wants you to "reopen." jmo

pr

[carlie]

I'd be cautious about "reopening" a claim. I don't see a reopening necessary, at this point, because if you do you lose your EED. As I see it, if that Dr did that testing within one yr of their denial you can argue that the VA failed to re-rate, your claim, based on the evidence they had in their possession. Any evidence held by them, no matter where it is held, needs to be considered. Often the VA makes a decision prior to all the evidence being there, even tho, you have a yr to get it in.

pr

In addition for support of the post above you can research and refer to

38 CFR 3.157

http://edocket.access.gpo.gov/cfr_2009/julqtr/38cfr3.157.htm