tinnitus Reconsideration for TBI, Needs Rating Board Attention

[13B Arty Raid]

Hello all, first post here.  I have a question about the reconsideration process, and possible outcomes.  Ill also post my timeline for reference. I was initially denied TBI due to not being service connected, even though I suffered 5 concussions while in service.  I have cognitive effects, memory loss. I found some of the older medical records from before everything went digital, and at the advisement of my VSO, I filed for a reconsideration.  Right now Im in the gathering of evidence phase, and my VSO old me that it "needs rating board attention".So my questions are 1,is it a possible positive that it needs rating board attention, and 2, with my current ratings, is it possible for them to grant me 100% scheduler, or will they reduce one of my other ratings if I get granted SC for TBI?

11/22/14-original claim filed

11/16/15- decision received

90% combined rating

50% sleep apnea

50% severe tension headaches

20% chronic lower lumbar sprains

10% tinnitus

10% right knee loss of strength after surgery

10% right hip condition

TBI DENIED not Service Connected

12/22/15- reconsideration for TBI filed

1/13/16- moved to "pending decision approval"

1/14/16- moved back to under review and then to gathering of evidence

  

[Guest]

Of course Ms. Berta is the best and I am in no way as knowledgeable as she is and consider myself the crazy one so here is my two cents.  First things first, VA would/will try anything but it doesn't mean that they will reduce one of your current service connected disabilities to add TBI to it. It is possible that VA will try to link your TBI to your service connected migraines/headaches or they may grant you service connection based on depression withTBI cognitive disorder.  There is no real way of knowing until you get the rating.  Something for you to consider and to read over, here is the regulations that deal with TBI:

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.

8046   Cerebral arteriosclerosis:

Purely neurological disabilities, such as hemiplegia, cranial nerve paralysis, etc., due to cerebral arteriosclerosis will be rated under the diagnostic codes dealing with such specific disabilities, with citation of a hyphenated diagnostic code (e.g., 8046-8207).

Purely subjective complaints such as headache, dizziness, tinnitus, insomnia and irritability, recognized as symptomatic of a properly diagnosed cerebral arteriosclerosis, will be rated 10 percent and no more under diagnostic code 9305. This 10 percent rating will not be combined with any other rating for a disability due to cerebral or generalized arteriosclerosis. Ratings in excess of 10 percent for cerebral arteriosclerosis under diagnostic code 9305 are not assignable in the absence of a diagnosis of multi-infarct dementia with cerebral arteriosclerosis.

Note: The ratings under code 8046 apply only when the diagnosis of cerebral arteriosclerosis is substantiated by the entire clinical picture and not solely on findings of retinal arteriosclerosis.

Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified

Facets of cognitive
impairment and other
residuals of TBI not
otherwise classified Level of
impairment Criteria

Memory, attention, concentration, executive functions0No complaints of impairment of memory, attention, concentration, or executive functions.

   1A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.

   2Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.

   3Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment.

   Total Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment.

Judgment0Normal.

   1Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.

   2Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions.

   3Moderately 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.

   Total Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities.

Social interaction0Social interaction is routinely appropriate.

   1Social interaction is occasionally inappropriate.

   2Social interaction is frequently inappropriate.

   3Social interaction is inappropriate most or all of the time.

Orientation0Always oriented to person, time, place, and situation.

   1Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation.

   2Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation.

   3Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation.

   Total Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation.

Motor activity (with intact motor and sensory system)0Motor activity normal.

   1Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function).

   2Motor activity mildly decreased or with moderate slowing due to apraxia.

   3Motor activity moderately decreased due to apraxia.

   Total Motor activity severely decreased due to apraxia.

Visual spatial orientation0Normal.

   1Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system).

   2Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system).

   3Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS (global positioning system).

   Total Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment.

Subjective symptoms0Subjective 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.

   1Three 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.

   2Three 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.

Neurobehavioral effects0One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects.

   1One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them.

   2One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them.

   3One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others.

Communication0Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language.

   1Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas.

   2Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas.

   3Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs.

   Total Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs.

Consciousness Total Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma.

 

[Berta]

Can you scan and attach their Reasons and Bases part of the decision and the Evidence list they used?

(Cover C file number, name, prior to scanning it,.)

Pete gave the whole 9 yards here but like him, I too am wondering if the migraine headache award was used to SC residuals of the TBI.

[pwrslm]

I did a successful reconsideration.  It took 90 days to complete.

My evidence amounted to a CUE, and I had an open and shut case for correction of my effective date.  It was so obvious that they had to be stupid not to grant it because they ignored 9 separate evaluations from specialists who detailed my back condition very well, over a 2 PA's who did C&P examinations who both ignored obvious fact that were detailed by VA surgeons.

The thing with reconsideration is that it is fairly obscure because the only place you find information on it is in the M21, not the CFR or the USC.  If you file an appeal, and document everything, they have to review the appeal and grant you whatever is proven through the DRO.  They take the review step in all appeals, they must grant SC for the condition if the new info you gave them proved the connection.  Its the same as what they do in the reconsideration, but slower.

 

If they denied my request for reconsideration, I would have lost the 90 days that it took for them to process my request, if I had filed a NOD.  The 90 days might have been longer, I don't know what the stat's are on reconsiderations because they don't publish info on them.  Its either new, or a way for the VA to fix their goofs and not let the error data hit the statistics that are public related to appeal's and errors.

Edited January 23, 2016 by pwrslm

[13B Arty Raid]

Thanks for the replies everyone, Berta, I don't have access to a scanner right now or I would.  Basically to clarify though, I was awarded 50% for Tension headaches. It did not state anything in the packet about being a residual of TBI.  I was denied service connection for TBI because, from what I understand, the DR who did the C&P exam stated that it was less likely that I received the injuries causing the TBI while I was in service.  She did not look at my records, only went off of my word of mouth and the diagnosis. Also, when I went through my active duty records after I got my decision, there were original documents from one of the incidents.  Somehow when the Army switched to electronic records, these records DID NOT make it into my electronic records, so that would mean that the VA had no medical record of these incidents. These were the evidence that I used to submit my Reconsideration, because since the VA had not seen it, it was new and material. I appreciate the reconsideration reply when you said it took 90days.  I guess that since I just went over 30 days since I filed the reconsideration, Im not in too bad of shape, yet

[Berta]

"I was awarded 50% for Tension headaches. It did not state anything in the packet about being a residual of TBI.  I was denied service connection for TBI because, from what I understand, the DR who did the C&P exam stated that it was less likely that I received the injuries causing the TBI while I was in service. "

Yes, I noticed that today,....the migraines were not at all related to the TBI claim.

 "Also, when I went through my active duty records after I got my decision, there were original documents from one of the incidents.  Somehow when the Army switched to electronic records, these records DID NOT make it into my electronic records, so that would mean that the VA had no medical record of these incidents. These were the evidence that I used to submit my Reconsideration, because since the VA had not seen it, it was new and material."

GREAT...This is New and Material evidence...however, if VA, in fact did have these records

(such as if they made a ballpark statement that your entire military records were considered) then that could also possibly be a CUE scenario.

The 'original documents'...were they in your SMR file or within your Personnel (201) file?

This is why I always suggest any vet getting their military records with a SF 180 ,to  request that they include all records, Medical as well as Personnel records, and in some cases -( I helped a vet win a claim with this request ).... request proof of all disciplinary actions that had been taken against them.

I think you should do well with the Recon request.

A Reconsideration request I had on a CUE claim , took over 6 years.

(Actually it was 3 separate CUE claims in one....filed on a 1998 decision)

They reacted with rhetoric  (and even tried to make up a regulation to deny the claim) and it appeared they were actually trying to handle the reconsideration  properly until I realized I was putting too much faith in them...they were just trying to piss away my NOD year so I filed the NOD at the last minute.Long story. The claim then  succeeded at a different RO because by then I had a AO IHD death claim and I wrote to the Nehmer RO that the original CUE claims were contingent on a proper award of the AO IHD claim.

(explicitly interwoven)

Proof of your direct involvement in whatever caused the TBI incident,in those records, will help considerably.

 

 

 

[13B Arty Raid]

Well, this past Friday (3/18/16) my claim for reconsideration went to "Preparing for Notification" with an estimated completion date of 3/20/16 to 3/21/16!  Heres hoping I get some good news to share tomorrow morning or soon!