diabetes Overcoming Military Failure To Acknowledge Tbi In 1972

[HorizontalMike]

In 1972, while serving in USN, I landed on my head from a motorcycle accident and woke up in the Naval Hospital. LOC ~45min but at time diagnosed as "mild concussion", held 24hr, dismissed after being told I would be fine and sent back to ship to be deployed to Vietnam.

Flash forward ~40yr. When my perpetual depression eventually went off the deep end I asked the VA for help. Started taking meds and asking questions about my life. Finally got directed to Poly-Trauma for full neuro-pysh and MRI. FWIW, I was wondering why I always had trouble remaining employed longer than ~2yr at-a-time over the past ~40yr. I earned three degrees including a PhD, plus three other professional certs, but just could NOT keep a job. MRI results showed past indications of "stroke" (ischemic insults in white matter where parts of brain died), but being UNRATED for TBI, the current doctors atributed this to current diabetes and age. At this point I filed for disability and 14 months later got my 50% rating for TBI. THAT is when I finaly realized my TBI was real AND just how bad I am disabled by it. The detailed list of symptoms/manifestations that the VA examiner provided read like a laundry list of my life's challenges, that until then I had never put together in conscious thought.

I have my intelligence but what I lack are the higher level executive functions that would let me put my education to use. In other words, I can't play well with others at work or at home. I could p***-off the Pope given enough time together. I have no friends at this point, but do have ONE person I taught school with (a retired LTC) that seems to understand and gives me advice from across the country.

My military performance records are bad, real bad... as in I do not understand why I wasn't kicked out, jailed, etc. They show manifestations of deprived sleep, anxiety, irratibility, lack of motivation, etc.

My post-military civilian employment performance records show the SAME manifestations over a roughly ~27yr of the 40yr since TBI. I only kept THOSE records because I thought "they" were picking on me. But they are detailed records, and they seem to show that "they" were correct, and NOT me. This took me months to come to terms with, and only by viewing these things using a 3rd person analysis. Personally, I get too upset reading/thinking about them.

My Depression Rating was denied, though the VA final rulling about depression being "secondary service connected" came through within a week of my TBI rating, so THAT will be reassessed in the appeal.

I recieved a C-PAP for my sleep apnea, that was just diagnosed in 2013. I have a 1973 diagnosis for vaso-motor rhinitus, that also states/records such things a "trouble sleeping, mouth breathing, snoring, 30lb weight gain(BMI-31 = obese), anxiety, BP of 140/100/90, non-reactivity to know allergens, etc. Sleep apnea denied due to lack of nexus.

BOTTOM LINE is that the military FAILED to do adequate testing in 1972-73 on my TBI, depression, sleep disordered breathing, etc. What is NOW considered as standard protocol following a TBI, was not even known in 1972-73. Shoot the C-PAP machine wasn't even invented until 1985, so the military would not even know what to look for.

QUESTION: Isn't THIS where the VA's "benefit of the doubt" rule should kick in? After all they finally rated my TBI (lower rating than I have records to show degree of disability) going retro-active ~41yr. (i.e. Schrödinger's cat)

CURRENT STATUS:

My TBI/Depression appeal has been filed.

My Sleep Apnea appeal is being developed AND THIS IS WHERE I COULD USE SOME HELP. I am focusing on the military's failure test me for sleep disorders when it was/is obvious that I had manifestations of sleep disordered behavior in my elisted performance records as well as in my vaso-motor rhinitus diagnosis in 1973.

Any help/advice would be appreciated.

[HorizontalMike]

Again - there was no such thing (for VBA purposes) in 1972/1973, as TBI or OSA.

Perhaps I am not understanding exactly what your question actually is.

Well Carlie, I understand what you are saying. So please explain to me HOW the VA actually DID give me 40% TBI and 10% Tinnitus... IF THERE WAS NO SUCH THING AS TBI IN 1972-73? That makes no sense.

And BTW, all I can say is that my TBI/Depression/OSA manifestations/symptoms existed in 1972-73. And THAT is a documented fact. For some reason (please explain WHY/HOW to me specifically) the VA granted this when I didn't even have much of anything in the way of lay evidence since I actually was still unaware for +40yr that I actually HAD a TBI, and yes that unawareness is part of my TBI disability. Shoot, I was unemployed for SIX years, after my last job, before I even thought of approaching the VA for help and that was for my deepening depression because I was ready to check out. A malingerer I am NOT.

Edited August 7, 2014 by HorizontalMike

[HorizontalMike]

The most obvious way to me would be to obtain an IMO. The military records would have to be reviewed by the physician(s)

doing it, and basically say that, in their opinion, the records show that the condition (more likely than not, etc) originated in service.

Then, the current level of the condition should be addressed. If there are post service treatment records, etc.

they should also be referred to in the IMO.

Chuck,

I will look into getting an IMO though I have many concerns/questions regarding doing this:

• How much could this cost? -- I understand that it can vary wildly, but any ideas on a range of how expensive?

• What TYPE of doctor to approach for the IMO? A psychiatrist? A neuro-psychiatrist? A neuro-psychologist? A general Physician? After all we are talking about neurological executive dysfunction, physical and/or mental (obstructive and/or central) sleep disorders, depression (most likely neurological other than psychiatric, but needs to be defined), and resulting obesity (that occurred in short order after TBI and remained a challenge).

• In other words WHO might be best at addressing all of the above in an IMO?

• Is it possible to get access to ALL of the VBMS files on me, from 1972-1975? If so HOW? FWIW, I submitted a SF-180 to the NPRC in St Louis, so will that do the trick? I delineated 7 different locations, ships, hospitals, etc. with general dated parameters.

RE current conditions:

• On daily meds for MDD -- Prescribed by a general psychiatrist, NOT a TBI specialist. I point this out because treatment(drugs) can vary for neurological(brain physically damaged) caused depression vs psychiatric(emotional) depression. These doctors literally REFUSE to look at my documented manifestations outside of the military in order to determine this, yet I have ~27yr of pertinent original data from employers that show much of what I delineated above in the OP about my military manifestations.

• OSA diagnosed and treated with nightly C-PAP

• Diabetes for past 5-6yr... treated with metformin orals only

• Hypertension treated for ~8yr. FWIW, battled obesity all of adult life after TBI.

[carlie]

Well Carlie, I understand what you are saying. So please explain to me HOW the VA actually DID give me 40% TBI and 10% Tinnitus... IF THERE WAS NO SUCH THING AS TBI IN 1972-73? That makes no sense.

And BTW, all I can say is that my TBI/Depression/OSA manifestations/symptoms existed in 1972-73. And THAT is a documented fact. For some reason (please explain WHY/HOW to me specifically) the VA granted this when I didn't even have much of anything in the way of lay evidence since I actually was still unaware for +40yr that I actually HAD a TBI, and yes that unawareness is part of my TBI disability. Shoot, I was unemployed for SIX years, after my last job, before I even thought of approaching the VA for help and that was for my deepening depression because I was ready to check out. A malingerer I am NOT.

HM,

The WHY's and HOW's are explained to you in the Reason's and Base's Section of your Rating Decision's.

I was honorably discharged in 1978.

Around 1982 I was granted SC for Diagnostic Code 8045 - Brain Disease Due To Trauma,

with an effective date of day following separation.

In October 2008 there was a change in the regulations for the Schedule of Rating Disabilities

and Diagnostic Code 8045 was changed to TBI.

Following this change in regulation, the VBA automatically added TBI to my SC'd conditions

and invited me to submit a claim for increase under the new regulation.

Please understand that I am NOT saying in any way that your symptomology for TBI and OSA

did not exist in 1972-73.

What I am saying is that for VBA purposes, these Diagnostic Codes in the Schedule for Rating Disabilities,

for TBI and OSA - Did Not Exist.

Thereby They Could Not have been provided SC for during 1972-73.

Everything relating to VBA disability benefit revolves around Diagnostic Codes listed

in the Schedule Of Rating Disabilities.

As time goes by, regulations change and update, new / additional medical conditions are either added

or reclassified.

Here's a link to the Schedule Of Rating Disabilities.

http://www.ecfr.gov/cgi-bin/text-idx?SID=2da58952d2878164f84c4b01d6d5fbb3&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

[john999]

HM

If you have a bone to pick with the military then you need to take it up with BCMR. Good luck on that one after 40 years. Forget about what the military did, or did not do in 1973. If you want to fight that case you will need to hire a lawyer, and pay about $10,000 just to get a decent hearing if they allow it. The BCMR does not even have to hear your complaint after 15 years unless you can show miscarriage of justice that is major. Concentrate on getting the VA to bump you up to at least 70% so you can file for TDIU and have a good chance of getting it. If you had filed for brain injury in 1973 maybe you would have gotten SC at some rate. I think there is no chance VA is going to go back, and reconsider your claim for retro back to date you were first DX'ed with some brain injury since you never filed a claim until recently. You are lucky to have gotten the 40%. Could you show continuity of symptoms or treatment over the last 40 years since discharge not that it would matter? I understand very well why you are pissed off since the VA and military knew you had a problem. Screwing you was just SOP in the 1970,s after Vietnam. After you get TDIU or 100% go back and fight this retro battle. That is what I am doing and I filed a claim in 1972. Not doing so well in that regard after 8 years in appeals with a lawyer.

John

John

[john999]

If you sat foot in Vietnam your diabetes would be service connected by the way. If you went ashore in any port in Vietnam for even ten minutes, and can prove it, then you are "Boots on the Ground" Vietnam vet. This would be a very big deal for you. I think about half the Vietnam vets that post here have DMII. The secondary conditions are many and varied from DMII to heart attacks.

[carlie]

HM,

Just wanted to add that the rating decision that granted SC for your TBI with a

50% evaluation, may or may not have already rolled your symptoms of depression

into the TBI SC and compensation.

Reading thru the complete Reasons and Bases Section and the Evidence Section

of this Rating Decision should tell you whether the Depression is included in your

current TBI evaluation or not.

Also, here's another BVA case that explains the change in regulations and effective dates

very good.

http://www.va.gov/vetapp12/Files2/1213878.txt

"Shortly before the appellant filed his claim for an increased rating, the criteria used for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended, effective October 23, 2008. See 73 Fed. Reg. 54,693 - 54,708 (Sept. 23, 2008). The Federal Register's paragraph addressing the applicability date of the new regulation specifically states:

The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date. However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 CFR 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. The effective date of any increase in disability compensation based solely on the new criteria would be no earlier than the effective date of the new criteria. The effective date of any award, or any increase in disability compensation, based solely on these new rating criteria will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations governing effective dates, 38 CFR 3.400, etc. The rate of disability compensation will not be reduced based on these new rating criteria. 38 U.S.C.A. § 1155; 73 Fed. Reg. 54,693 (Sept. 23, 2008).

As the appellant's claim was received after the change in the regulations, only the new criteria may be applied.

The new version of Diagnostic Code 8045 continues to provide for the evaluation of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). But now there are three main areas of dysfunction listed 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 criteria used in the evaluation for TBI is as follows:

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." Id.

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. Id.

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." Id.

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. Id.

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. Id.

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. Id.

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. Id.

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. Id.

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. Id.

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. Id.

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. Id.

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. Id.

The table titled "EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED" provides that for Subjective Symptom Facets of cognitive impairment and other residuals of TBI not otherwise classified, a level of impairment of:

0 (0 percent) is provided for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety;

1 (10 percent) is provided for three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light;

2 (40 percent) is provided for three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days.

The appellant has consistently complained of short-term memory loss. The manifestations have been reported as being moderate and confirmed on objective testing. He has also been found to have concentration difficulties. Hence, his level of impairment in this facet is no more than 2. A 70 percent evaluation (level of severity of 3) is not warranted unless a medical examiner finds evidence of moderately severely impaired judgment for even routine and familiar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A medical examiner has not found this and as such, a level of severity of 3 may not be assigned.

Judgment, motor activity and visual spatial orientation have been noted to be normal, and there is no other evidence of record showing otherwise. Hence the level of impairment in these facets is 0.

The appellant has always been oriented to person, time, place and situation on examination, and there is no evidence of any dysfunction in his communication skills. Additionally, the medical evidence of record indicates that the appellant has been able to communicate by spoken and written language and to comprehend spoken and written language. There is also no evidence of record showing that the appellant has ever had any inappropriate social interactions.

The appellant has also complained of having a loss of balance although he has not experienced dizziness. Moreover, he has also been found to have very severe difficulty in falling or staying asleep. However, there is no evidence that these symptoms have interfered with work, presumably they might mildly or even moderately interfere with work, but they do not require rest on most days or cause more than moderate difficulty. The level of impairment from these factors would be no more than 2."