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Okemos_Veteran74

I do not qualify for SMC s because my PTSD is secondary to my TBI

Question

I just learned something from a vso, and I'm checking it. I have always found that I get really good advice on this site thank you all

I have a PTSD rating of 70% which gives me tdiu and is permanent and total. I have a TBI rating of 70%.

I do not qualify for SMC s because the PTSD is secondary to the TBI. Is this correct?

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No.   You may not qualify ONE way, (100 plus an additional 60, "seperate and distinct", or statuatory SMC S, because the secondary is not "seperate and distinct), but you may qualify other ways. 

For example, you may qualify due to "housebound in fact" if your doc says you are substantially confined to your premesis.  Further, you could still get statuatory smc s, if you got another rating "seperate and distinct" combining to 60 percent.  

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Please read this BVA case

In part:

In sum, the Veteran's headaches and cognitive deficits, recently 
attributed to a TBI, and PTSD result from one of the same in-
service injuries/incidents (in-service motor vehicle accident and 
concussion) and, although some of the emotional and behavioral 
symptoms associated with the TBI and PTSD overlap, the Veteran's 
headaches and cognitive deficits are post-concussive in nature 
and therefore separate and distinct from his stressor-induced 
psychiatric disability.  Inasmuch as the previously noted 70 
percent evaluation does not contemplate those headaches or 
cognitive deficits, the criteria for entitlement to a separate 
rating therefor are met.  The evidence in this case supports the 
Veteran's claim.  


ORDER

A separate rating for residuals of a TBI is granted subject to 
statutory and regulatory provisions governing the payment of 
monetary benefits."

https://www.va.gov/vetapp10/files4/1035821.txt

 

(a separate rating from the 70% PTSD)

They might have committed a CUE-mght- can you scan and attach the decision?

We need to see their complete rationale, and the evidence list, and the date-

Your  C & P exam might have been one of those bogus TBI exams they got caught doing some years ago.

Cover your  C file #, name, prior to scanning it.

 

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Anne Linscott, Attorney

Veterans with TBI – How to Get Secondary Service Connection for Certain Conditions

May 6, 2016/in General /by Anne Linscott, Attorney

What are the Secondary Conditions?

Traumatic Brain Injury (TBI) is the physical, cognitive and/or behavioral/emotional residual disability that results from an event of external force that causes a brain injury. In addition to these different residuals, it is possible that a veteran may have a separate diagnosable condition that is considered to be a secondary result of TBI. In December of 2013, the regulation on secondary service connection was changed to establish a connection between Traumatic Brain Injury (TBI) and certain illnesses. The full regulation can be found here. According to that regulation, as long as there is no clear evidence to the contrary, the following five conditions are held to be a secondary result of TBI:

  1. Parkinsonism (including Parkinson’s Disease) – following moderate or severe TBI
  2. Unprovoked Seizures – following moderate or severe TBI
  3. Dementias (presenile dementia of the Alzheimer’s type, frontotemporal dementia, and dementia with Lewy bodies) – IF the condition manifests within 15 years following moderate or severe TBI.
  4. Depression – IF the condition manifests within 3 years of moderate or severe TBI, or within 12 months of mild TBI.
  5. Disease of Hormone Deficiency (resulting from hypothalamo-pituitary changes) – IF the condition manifests within 12 months of moderate or severe TBI.

Entitlement to secondary service connection for one of the above five conditions, depends on the severity of the TBI and also depends on the period of time between the TBI and the onset of the secondary condition (when the secondary condition manifests). If a veteran’s TBI is of the required severity, and his secondary condition manifests within the required time period, then no medical opinion is needed to determine whether the secondary condition is associated with TBI. If the TBI severity requirement and the time period for manifesting is met, then the above five conditions are automatically associated with TBI.

How the VA Determines TBI Severity

As mentioned above, in order to receive secondary service connection for one of the five included conditions WITHOUT needing a medical opinion, the TBI must be of a certain severity. In looking at this requirement, the VA cares about the INITIAL severity of the TBI. The following table is how the VA evaluates the initial severity of a TBI:

Mild Moderate Severe
Normal structural imaging Normal or abnormal structural imaging Normal or abnormal structural imaging.
LOC = 0-30 min LOC > 30 min and < 24 hours LOC > 24 hrs.
AOC = a moment up to 24 hrs AOC > 24 hours. Severity based on other criteria.
PTA = 0-1 day PTA > 1 and < 7 days PTA > 7 days.
GCS = 13-15 GCS = 9-12 GCS = 3-8.

(LOC = loss of consciousness; AOC = alteration of consciousness/mental state; PTA = post-traumatic amnesia; GCS = Glasgow coma scale)

In order to qualify for a certain level of severity, the TBI does not have to meet ALL of the criteria listed for that level. Also, if a veteran’s TBI meets the criteria for more than one of the levels, the TBI should b evaluated at the highest level in which it meets the criteria.

Evidence Helpful for Initial Severity

Certain evidence can be helpful for the VA when determining the initial severity of a veteran’s TBI. As always, it is important to spend time gathering all of the evidence that you can in order to get an accurate evaluation. Taking the time to make sure this this is done means you may be able save time and money down the road by not having to obtain a private medical opinion. The evidence that is helpful includes:

  • Statements of the veteran
  • Statements from witnesses of the injury
  • History provided by the veteran in medical reports (including VA exams)
  • Service treatment records after the TBI

Evidence does not have to be from the exact time of the TBI injury, but it does need to relate to the condition of TBI at or shortly after the time of the injury.

An Example

A Gulf War veteran submits his claim for service connection for Parkinsonism secondary to his service connected TBI. The veteran’s separation exam at the time of his discharge mentions a history of TBI in service. However, there is not enough information on the separation exam to determine what the level of severity of that TBI was. The veteran submits a statement describing his loss of consciousness during a battle. The VA reviews the veteran’s prior C&P exam reports and sees a history provided by the veteran that he was told by his fellow service members that he fell unconscious for almost an hour after an explosion went off near him. The veteran also submits a statement from one of his fellow service members that saw the explosion and saw him go unconscious.

The veteran’s statement, along with the statement of his fellow service member, and the history found in the C&P exam reports provides sufficient evidence to determine that he experienced a moderate level of TBI during service. This is true even though his service treatment records do not have sufficient documentation of severity. Because the veterans meets the criteria for a moderate TBI, his Parkinsonism will be service connected secondary to his TBI.

 

Source: Hill & Ponton Disabilities Attorneys

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Stop for a moment and play Transactional Analysis. I love TA. He said... "I have a PTSD rating of 70% which gives me tdiu and is permanent and total." Okay. First ,we know he thinks  he's P&T TDIU for the bent brain syndrome. That's DC 9411 found in mental disorders under §4.130. Now, if he's rated for TBI under  DC 9304 Major or mild neurocognitive disorder due to traumatic brain injury, then yes, by operation of law, you would be precluded from saying it was a separate and distinct illness. But is it? 

He is rated equally for both @ 70%. He says "I do not qualify for SMC s because the PTSD is secondary to the TBI. Is this correct?"  Good question. You are being rated for both so VA obviously does not consider it pyramiding. If it isn't pyramiding, then it must be two different disease processes. Who is to say the PTSD is secondary to the TBI? Or arguendo, vice versa? You could legitimately have a fear of the enemy apart and separate from a Disney IED ride in an MRAP.  Either one would equally entitle you to TDIU so a study of what is considered "separate and distinct" must be employed. You need a private shrink trained to write your IMO.

Where does it say you cannot have scrambled eggbrain for 70% and a separate and distinct rating of 70% for MST?    Two separate and distinct disease processes. 1) Organic brain disease/trauma from IED explosive force (physically-caused neurological injury); and 2) genuine PTSD based on a completely different trauma (mental). 

DC 8045 says:

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.”

Now you're talking two different zip codes in Part 4. First, TBI is rated under §4.124a in the neurological/convulsive as DC 8045 and requires a set of residual disorders like tinnitus, headaches, loss of balance, Meniere's and so on added cumulatively in three categories which includes mental deficits. PTSD, however, is listed under §4.130 DC 9411.  So... there is no pyramiding which implies legally that a brain omlet is indeed separate and distinct from a Pretzel brain syndrome. Ergo, I'd sure file for it citing to §4.14 Avoidance of Pyramiding as on point and the correct operation of law (statute) and regulation. You can't have it both ways. Pyramiding is like pregnancy. Either you is or you ain't. Pyramiding is only allowed in order to qualify for r1/r2 but that's another subject.

You never get anywhere unless you're willing to turn the box inside out and look underneath it too. I'm sure Mr. Bradley and Mr. Buie never expected to win their SMC (s) arguments but they did indeed and cut new precedence that benefits all of us.  This might be one of those cases. 

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