Under Administrative Review

[Scout Swimmer]

I was denied recently on a depression claim. I noticed on the denial letter that they based the decision on direct service connection. I am 40% TBI with 50% mixed headaches as a secondary. I assumed it would be automatically rated as a secondary condition to my TBI as my submitted medical evidence clearly state in my progress reports.

I immediately submitted a letter of reconsideration to rate my claim as secondary to TBI, as my DAV rep advised. I am now under Administrative Review.

I'm still not clear on how long this process takes, or what it exactly is. I called Peggy and she informed me that it has nothing to do with my claim and it is closed. I didnt get much out of her as she was unwilling and a bit hostile. I am considering retaining an Attorney but should I wait and see where this goes? Is this a thing that could last a year forfit my right to appeal?

Any suggestions would help

Thanks

[Scout Swimmer]

Yeah well now it's off Admin Review. The whole claim went back to start, sitting at gathering evidence. Ha. I don't know what to think anymore. I am getting a private opinion though this time around. I already have a date to see my own psychologist.

[NavyWife]

Believe It or not that's actually a good thing. If they can fix this now it's much better than you having to go to an appeal which will take much much longer.

Of course it would have been better if they would've just done the claim properly the first time but at least now they are acknowledging that it was done incorrectly and trying to fix it.

Did your rep say if it is now submitted as "secondary to TBI"??

[Berta]

This is good and the DAV rep is supporting the Recon request.

A Reconsideration Request can often save a lot of time,in obtaining a better and proper decision.

The problem is the NOD deadline ...it does not change ,even if a Reconsideration request is filed.

You sure are right on the mark as to the appeal period.

Let's hope you get what you want out of this,prior to having to file the timely NOD.....but I have some questions....

You stated:

“I was denied recently on a depression claim. I noticed on the denial letter that they based the decision on direct service connection.”

Did the DAV advise to appeal that part of the claim and file the recon request on the headaches to TBI secondary part of the claim?

A TBI is almost always a stressful event. Did you file for PTSD or just for depression?

Can you tell us why they denied the depression claim?

“I am 40% TBI with 50% mixed headaches as a secondary. I assumed it would be automatically rated as a secondary condition to my TBI as my submitted medical evidence clearly state in my progress reports.”

This is a long but recent BVA decision.It indicates that headaches can become rated as part of the overall TBI residuals rating:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files4/1337740.txt

Can you clarify what you mean by the 50% in this statement

“I am 40% TBI with 50% mixed headaches”

Unfortunately we can never 'assume' that the VA will 'assume' anything that could help our claims.

If I was a VA rater I would assume here that you might have PTSD from the TBI which could include depression,as part of the PTSD, due to the stressful TBI event. VA must rate PTSD separately fropm TBI.

Then again if I was a VA rater or claims person, and this was not formally claimed as PTSD with depression, I would go no further on the PTSD issue because that would need a medical diagnosis and a C & P exam specifically for the PTSD.

Has your rep raised these points to you?

The BVA decision above, I am posting into our TBI forum.

It is a long but very articulate explanation of facets of the fairly recent TBI regulation changes.

VA, to their credit, has come a long way in treating and properly rating TBI residuals.

Still there is a lot to TBI ratings, which are difficult for anyone without a TBI to comprehend,

and sure must be difficult for any vet with a TBI to understand.

I only hope our vet reps are up to speed on TBI.

I am still trying to understand this BVA decision.....

It states:

“Revised DC 8045 states that 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.”

The BVA goes into detail to explain that and much more.

Please don't take my remarks the wrong way.....about comprehending the regulations....

I have seen cognitive dissonance in many PTSD veterans as well as TBI vets.

A dear friend of mine ( combat Vietnam, 2 PHs ….forget how to say that)

used to berate himself as being 'stupid' because his PTSD would hinder his ability to comprehend stuff we needed to discuss ,to get his claims awarded.

He just needed a lot of repetition to get it all.

And he is sure NOT stupid.

I regret that all of us claimants have to practically become lawyers these days to be able to understand VA legal lingo, so we can properly shape our claims and get our full Duty to Assist rights.

[Navy04]

I agree with the info above bud. I think that your claim will move good now. Good luck and keep us posted.

[daklander]

Unfortunately I think you are right. I asked my VA psychologist to write something up for me. Just to be more detailed in her already documented diagnosis. She said it would be a conflict of interest because ultimately, her boss is the VA. I am learning the awful truth as you suggest as I go along.

Excuse, and a bad one at that. Conflict of interest my ass. She is more concerned with the CYA method of service to Veterans.

I've had two VA Oncologists who have written Nexus letters regarding my cancer and it's cause, and I've had a VA physcologist write a Nexus letter pertaining to PTSD.

[Scout Swimmer]

I don't even care anymore. My claim has changed to "psychologicsl disorder to include depression and anxiety secondary". The VA sent me a devolpement letter in which I just waived. No evidence from my origional claim is listed on this redue. I never even had a CP exam and I don't think they are schedualing one for me this time either. My rep said I had plenty of evidence but I guess by the va sending me the developmental letter I assume they feel different. Screw it. Berta, I am rated seperately with the TBI and mixed headaches, if that's what you were asking. My psychologist said I have PDST, but never marked that in my progress notes and I've never claimed it. But she did recommend me for the caregiver program in the notes, whatever that is.

Edited March 4, 2014 by Philgrenier