3 Week Progress Report

[NavyWife]

I've been at this for only 3 weeks, but due to the awesome folks here at Hadit, I have learned an immense amount of information already. I've been glued to my laptop averaging 8 hours per day for the last 3 weeks. I think my eyes are going bad from reading BVA cases, however!!! haha

Here's the rundown on what I've done so far:

#1 Mailed official application form 21-526EZ as a Fully Developed Claim using certified mail, return receipt requested. At this time, I am only requesting an evaluation for 2 issues. Increase for previously service connected seizures currently with a lowball rating of 20%. Also, claiming TBI. There are definitely more issues, but I want to start with the 2 that are affecting him the most. Also, I feel we have good medical evidence and service records to prove service connection for the TBI due to a fall and head injury he sustained while on active duty. I also included a Statement of Support regarding the frequency of seizures. I opted not to include a doctor's report of the frequency at this time, because I had read once epilepsy is service connected, they can accept medical OR lay evidence regarding the frequency. If they want the medical evidence also, then they can schedule a C&P exam.

For the TBI, I had read VA will want to do their own evaluation, nexus and their own diagnosis, so I did not include any medical evidence for that either. However, I had the veteran write up a list of his symptoms that are bothering him that also match what is found in the 38 CFR Schedule for Rating Disabilities guide under TBI (8045).

Additionally, I included the dependency form 21-686c. I filled it out completely, but opted not to include a copy of marriage certificates or birth certificates for the kids. I've heard they are trying to streamline the dependency additions and only need those certificates in certain cases.

We will see if my minimal approach works or not. I figure if they need more documents, they will mail me a letter requesting them.

#2 After about 2 weeks of phone calls, I was finally able to get the logon for the EBenefits Premium account. I am hoping that site will be useful at some point in the future.

#3 I requested his records from NPRC using the online system and followed up with a faxed signature page. https://vetrecs.archives.gov/VeteranRequest/home.html

#4 I sent a written letter to the VARO requesting a copy of his c-file.

#5 Bought this VA claims guidebook on Amazon from Asknod

http://www.amazon.com/s?ie=UTF8&field-author=Asknod&page=1&rh=n%3A283155%2Cp_27%3AAsknod

#6 read and reread until I thoroughly understood the rating guide VA uses for the conditions he is claiming using the Online Code of Federal Regulations

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=1fba67e9494507e5b9f58baa3f412824&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

TO DO NEXT WEEK:

Take him to the VA medical center where he was last treated and attempt to get his personal medical records.

Take him to a VA medical center and do the in-person proofing to get the Premium account for MyHealthE Benefits website.

Start preparing my case for the denial that VA usually hands out. (I don't expect to be denied for the increase in seizures. But I expect they will try to deny the TBI)

Edited October 17, 2013 by NavyWife

[Berta]

"But I expect they will try to deny the TBI"

Good war plan ...I mean game plan..... ooops I mean War game plan!!!!

I however always sent evidence along with my claims.but I never used the EZ form either.

Why do you think they would deny the TBI?

If it is documented in his SMRs that should be no problem. Lots of TBI info here at hadit.

TBIs are rated on residuals however.

Seizures could be a residuals.

"Increase for previously service connected seizures currently with a lowball rating of 20%"

Are you claiming he has residuals from a TBI that are NOT related to the seizures he gets comp for now?

That is possible but maybe I have misunderstood this.

[carlie]

NW,

What about the claim issue for anxiety ?

Do you want that to be one of the TBI facets ?

[NavyWife]

Berta

I'm thinking they will deny the TBI because they're the VA and they deny if possible, approve only if they must! ;)

We are applying for rating code 8045 residuals of TBI. These are residuals NOT related to the seizures. He has many of the cognitive impairments associated with a TBI. All these years I thought those things were just his personality quirks. Then one day I was reading about seizures and I came across information on TBI. Reading the symptoms was like describing him to a tee.

As you know 20 years ago there was no disability called a TBI. When he had his TBI in 1990, they just sewed up his head injury and once he woke up from the concussion, sent him home. He fell 50 feet down a shaft on an aircraft carrier & landed on his head. He was never rated for it by VA and certainly never treated for it. From what I understand, the current soldiers leaving service must all undergo a TBI screening.

What I'm anticipating they may deny it based on:

#1 He does not have a prior diagnosis of TBI.

#2 He has never been medically treated specifically for TBI.

#3 It has been over 20 years since the TBI incident.

At this time my rebuttals need more work, (If anyone can chime in with some ideas).

#1 and #2 He does not have a diagnosis or treatment because we were unaware that his grouping of symptoms had an actual cause or that treatment was available.

#3 Even though it has been over 20 years since the TBI, he has had this grouping of symptoms since that time; it is a chronic condition.

I was reading another post here on Hadit by McLean back in July, where her husband had a TBI event in service and they gave him a service connection for TBI, but with 0% rating. The doctor basically said that his symptoms were not severe enough to qualify for a paid rating.

Is it just based on the doctors opinion of the severity of symptoms ?

If a person gets service-connected but at a 0% rating, would they just file for an increase or do they have to do an NOD?

I wish someone could post what a TBI exam consists of.

Carlie

You bring up a good point. I decided to hold off on filing the anxiety claim with the TBI, because I was reading you can't use the same symptoms twice. Anxiety is one of the symptoms used for rating TBI. Maybe Im overthinking this. My plan was to file right now for only the TBI and the increasing seizures. Once that decision comes back then I would file the anxiety as secondary to the seizure condition. He tells me that most of his anxiety is from worrying about when his next big seizure will happen. I'd love to hear your thoughts on this. :)

[carlie]

NW,

When can you post the narrative or reasons and bases from his original rating decision.

There is no external (public) dbq/exam for TBI, that I can find.

You could search post Oct 2008 BVA decision for TBI and what that climant's

exam entailed.

JMHO

http://www.cacvso.org/assets/vso%20forum%202012/disability%20benefits%20questionnaires%20(dbqs).pdf

10 DBQs Will Still Remain Internal to VA

• Hearing Loss/Tinnitus DBQ

• Medical Opinion DBQ

• Initial PTSD DBQ

• Initial Evaluation of Residuals of TBI DBQ

• Review Evaluation of Residuals of TBI DBQ

• General Medical Exam – Compensation DBQ

• General Medical Exam – Pension DBQ

• Cold Injury Residuals DBQ

• Former Prisoner of War (POW) Protocol DBQ

• Gulf War General Medical Examination DBQ

[carlie]

A TBI exam would at least consist of a doctors findings of the facets below.

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=53e65b731a212b27b244fa7475784ea9&rgn=div8&view=text&node=38:1.0.1.1.5.2.110.67&idno=38

8045 Residuals of traumatic brain injury (TBI):

There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical.

Each of these areas of dysfunction may require evaluation.

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.

Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”

However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table

Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings—mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”

Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code:

Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.

For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition.

The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations

Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc

Evaluation of Cognitive Impairment and Subjective Symptoms

The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling.

Assign a 100-percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

Note (1):

There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition.

Note (2):

Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.

Note (3):

“Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Note (4):

The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045.

Note (5):

A veteran whose residuals of TBI are rated under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable.

[carlie]

NW,

Another suggestion to get some quick and easy answers is to

call the 800 # (I rarely suggest this), and ask what Diagnostic Code (DC)

he is currently in receipt of compensation / benefits for.

They can USUALLY provide a correct answer for this question.

This way - you will know a bit more, while waiting for the records.