Denied On Depression.

[Scout Swimmer]

Just got off the phone with my DAV POA, in which he informed me I was denied. He explained they looked at it as a single traumatic event or diagnoses from the military, not as a secondary to my TBI, in which my mental health practitioner clearly stated and which I have 45 pages of supporting evidence stating exactly that. The rep from the DAV told me it was written up wrong. He is talking with the rater as we speak to change it. I'm pretty upset.

[NavyWife]

Navy wife, I looked at the denial letter. Was filed as "direct service connection for depression". My CVSO and VSO really screwed me I think,

You have a lot of possible directions you could go with this denial.

I wanted to confirm you are already service connected for TBI.

If yes, then, do you meet the criteria of trying to get the depression as presumptive? The criteria is a diagnosis of depression within 1 year after service for mild TBI, or within 3 years of service for a moderate or major TBI.

http://www.attiglawfirm.com/shoot/tbi-presumptive-conditions/

OPTION 1 --Refile

If you meet this criteria and have service connection for TBI, then you should refile the claim as "depression presumptive to TBI", along with a statement that "I am already service connected for TBI, and my depression meets the criteria of the 5 presumptive issues that went into effect January 14, 2014".

OPTION 2--Refile

If you do not meet the presumptive criteria, then you can still file as secondary to TBI. The only difference is you need a nexus statement by the psych doc stating, "It is at least as likely as not that the TBI caused the depression". There is a DBQ form you can ask the Dr. to fill out. I thought I saw one of your posts saying your doctor already said this. It needs to be in writing. Take a look at my post about "How to win your claim" for more info on DBQ's.

If you are comfortable with it, the fastest way to get the claim processed is by filing it as a fully developed claim and use EBenefits to actually file the claim. If all the medical evidence regarding your depression was handled by the VA, then you only need to list on your claim form which VAMC you used and approximate dates. You don't need to upload those 45 pages of documentation you mentioned to VA if they are records from a VAMC. If any of your records regarding treatment are NOT from VA, then you would need to upload those. And if there are any records you consider "the smoking gun" or the major proof for your claim, even if VA has them in their computer system already, I would go ahead and upload those few pages, just to make it easy for the rater.

OPTION 3--Appeal

I personally wouldn't take this route, but ultimately it is up to you.

If it is more important to you to get paid back to your effective date, then you could TRY to appeal. But VA won't care that your VSO filed the paperwork wrong. The only chance you would have of winning this on appeal and getting paid back to your effective date is if you could prove that you had depression while in service, because that is how the claim was filed--as direct service connection. You would need to pull out your service treatment records and point to symptoms, treatment or a diagnosis of depression while you were in service. IF you could find that in your STR's, then your next step would be to show that the depression has been ongoing since service. This could be either medical evidence like doctor's appointments for depression since you got out or even lay statements from family or friends stating they observed you being sad or uninterested in activities or lethargic or any other symptoms of depression. It's important that lay statements don't try to DIAGNOSE anything, only statements about what symptoms they OBSERVED.

OPTION 4--Appeal & Hire Lawyer

Same as option 3, but let a lawyer do all the work for you. They don't charge anything up front and just take a percentage when and if you win.

This is all I can come up with right now.

Option 2 seems like the best for you.

OH, AND FIRE YOUR VSO!

then quickly hire a new one that A) works in the same building as your Regional Office and B) has access to the Stakeholder Enterprise Portal (SEP). Ask them these questions before you let them represent you. The benefit of having a VSO like this is they can save you the trouble of calling the 1-800 number to check the status or check if evidence has been associated with your file. A few of them can even give good advice and not screw up your claim!

[Scout Swimmer]

Thank you Navy wife!!! I am rated 40 for TBI and 50 secondary mixed headaches. I was discharged in 1999, filed initial claim in 2009. I have 46 pages of evidence from my VA treatment records stating my chronic depression as secondary to TBI and PTSD. I've never claimed PDST though. So I guess my plan is to see how this admin review plays out? If not well, fire my VSO and hire the law firm who seem very interested in my claim?

[NavyWife]

Can I ask what your effective date would be for this claim?

Now it's reopened and under administrative review?

Hmm, That seems like a good thing. I'm not familiar with what administrative review on Ebenefits refers to.

Can anybody chime in who's had that or knows what that means??

Don't fire your VSO If he can get this fixed for you!!!

Maybe just sit tight and see what unfolds over the next week or so. Call your VSO every day and check the status. Is he a VSO that has access to SEP? Does he work in the regional office?

Edited January 15, 2014 by NavyWife

[Scout Swimmer]

Well, my VSO said it was a very bad mistake by both parties. I asked him if I needed any further evidence when I had him submit the letter of consideration last week, two days after I received the denial letter He said no. This claim was filed on April 14th of 2013.

[Loose Cannon]

I'm not familiar with what administrative review on Ebenefits refers to.

Can anybody chime in who's had that or knows what that means??

NavyWife - I've had this show up as well. It was explained to me that it means the claim adjudication is being held for a Quality Review.

LC

[Scout Swimmer]

Quality review?