Va Dr Stated Tbi - Never Sent For Tbi Test - Cue?

[sammy]

My husband has an anoxic brain injury.

He has been 100% service connected for Dementia but I recently reviewed his C&P exam.

The neuropsyce was asked if the veteran has a TBI and he answered YES. He was never sent for a TBI exam. Would this be considered Cue under 38 CFR 4.20 which talks about analogous ratings.

[sammy]

Thank you Berta and Carlie,

I have attached the last rating decision.

Anoxic Brain injury is nor in the rating schedule yet.

I know that he does not fit into TBI as it is caused by an external force but his residuals are the same if not worse than TBI.

I am trying to see if this would be an analogous diagnosis.

Any Thoughts?

1-3 pages Aug 3 2011 Rating Decision.pdf

4-6 pages Aug 3 2011 Rating Decision.pdf

[carlie]

Thank you Berta and Carlie,

I have attached the last rating decision.

Anoxic Brain injury is nor in the rating schedule yet.

I know that he does not fit into TBI as it is caused by an external force but his residuals are the same if not worse than TBI.

I am trying to see if this would be an analogous diagnosis.

Any Thoughts?

They granted 100 percent for dementia (anoxia brain injury /from myocardial) and A&A was granted.

I do not know of any reg that would provide a higher evaluation due to TBI.

They only allow one disability for mental health.

I think I still do not understand your goal.

Can you provide a link to anything showing that a higher evaluation could be

warranted under TBI versus dementia ?

Thanks

[sammy]

Carlie,

Thank you....our goal here is the new SMC (t) and you must have a TBI to fit into that level.

This may be precedent because Anoxic has not yet been added to the rating schedule.

See Federal Register / Vol 73 no 185 / sept 23, 2008

http://www.va.gov/orpm/docs/20080923_AM75_ScheduleofRatingDisabilities_TBI.pdf. Page 2 talks about Anoxic brain injury.

http://www.va.gov/orpm/docs/20080923_AM75_ScheduleofRatingDisabilities_TBI.pdf

Edited June 8, 2013 by sammy

[Berta]

I posted both SMC T Fast letters here at hadit when they came out:

http://www.scribd.com/doc/74883689/Smc-and-Tbi-Fl11-035

This was the most recent one.

NVLSP published this explanation of the SMC T award.

http://onlinedigeditions.com/display_article.php?id=997778

The decision you attached states that

This was a brain injury secondary to his service connected Coronary disease..

In my opinion, ( I have a strong neurological medical background due to having one veteran husband (USAR) with brain tumor (deceased) and subsequent USMC husband with brain trauma due to multiple cerebral transcients attacks and then full blow 100% cerebral stroke, with dementia, significant brain damage and cognitive impairment from same, (In essense they both had trauma from brain injury) and, although I am not a doctor, I do not see this ,in any way, as a valid TBI claim for SMC T per the VA Regulation and definition of TBI, as this regulation grew from the horrific TBI circumstances that OEF vterans got in Iraq and Afganistan.

I dont mean to imply here that Your husband's problems arent significant because they certainly are. and perhaps he is eligible for a higher level of SMC, other then trying to pursue the SMC “T” award.

Did you NOD this Aug 2011 decision and challenge what they said as to the "additional full step"

I do not know what they mean by the “additional full step”, it would be the SMC level.

The first page of the decision says they granted A & A as traditional SMC

They might have been wrong with that regular A & A award,by stating “the additional full step”was due to the 100% CAD".

VA paid me for 2 100% separate awards my husband ad but one was under 1151.

I dont know ( and haven't had the time) to see what is in M21-1mr, when a veterans has 2 separate 100 direct SC awards, and then gets A & A.

It might be the same as the 100% plus 60% reg but I am not sure, now, specifically since VA mentioned the "additional' full step" and SMCs are often "step" awards.

Hopefully a SMC expert here will chime in on that.

(I am unable to copy and paste here that part of the decision)

Did you discuss that part of the award with the rep from Vietnam Veterans Of America?

Edited June 9, 2013 by Berta

[sammy]

Thank you Berta for your thorough and extensive answer...

The article you posted from NVSLP is very explicit and I seem to think he would fall under this category if he were to be sent for the TBI exam.

In one of his C&P exams the Dr stated he did have a TBI. Here is where I wonder if there is any way to debate this.

You asked if I did a NOD on this decision....it has a decision date of Aug 2012 (my mistake above) and no I have not yet.

I asked for a RECONSIDERATION in Aug 2012 and it has not been answered yet. In my request for reconsideration I attached the Fed Register that I posted above about analogous ratings.

I'm not sure how to go about debating the A&A award or the SMC full step award.

I also hope that an SMC expert will chime in on this post.

[Berta]

I do too..... we have a lot of SMC info in our SMC forum here but it is certainly one of the most confusing benefits, as it gets into higher levels of SMC.

A reconsideration request does not stop the NOD deadline.

Even though VA responded to me many times about a reconsideration request I had made on a CUE claim,years ago , I had to file a NOD days before my NOD deadline was up.