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damnitface77

C&P to Separate Anxiety Disorder from TBI

Question

For Starters, I want to thank anyone who takes the time to read this and give me a little perspective. I just got my final C&P results after a series of claims. Currently I am 94% combined rating if I include my Sleep apnea claim (The Dr. wrote it was medically neccesary to use the CPAP, so I do expect the 50%. This C&P below was conducted to separate my anxiety disorder from my TBI disorder. Currently I have a 70% rating for Anxiety with residuals of TBI. I was wondering if anyone could read this and tell me if they think I can expect a separate rating for TBI memory loss based on the Dr's opinion stating that my issue is 80% anxiety and 20% TBI (see note 2b below). If I can get at least a 10% for TBI in addition to the 70% for anxiety, It should push me over the threshhold of 100% schedular. The only edits I made to this was to remove names.  Again, thank you for your time and expertise

70% Anxiety (Trauma with TBI residuals)

50% Sleep Apnea

20% Degenerative Disc Disease

20% Upper Neuropathy Right / 20% Upper Neuropathy Left

10% Lower Radiculopathy Right / 10% Lower Radiculopathy Left

0% TBI Migraines

LOCAL TITLE: COMP AND PEN NOTE
STANDARD TITLE: C & P EXAMINATION NOTE
DATE OF NOTE: JAN 28, 2019@14:30 ENTRY DATE: JAN 30, 2019@11:11:26

AUTHOR: *********** E EXP COSIGNER: URGENCY: STATUS: COMPLETED

Mental Disorders
(other than PTSD and Eating Disorders)

Disability Benefits Questionnaire Name of patient/Veteran: *****

Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination

Request?
[X] Yes [ ] No

SECTION I: ----------

1. Diagnosis
------------
a. Does the Veteran now have or has he/she ever been diagnosed with a mental

disorder(s)? [X] Yes [ ] No

ICD code: 300.00

If the Veteran currently has one or more mental disorders that conform to DSM-5 criteria, provide all diagnoses:

Mental Disorder Diagnosis #1: Unspecifed Anxiety disorder, chronic, severe

disorder.
ICD code: 300.00 Comments, if any:

Vet had been seen initially on 2/11/18 for Mental Health C+P exam done

by Dr. *****(which proposed "Anxiety disorder, NOS" then, while f/u

C+P exam on 2/16/14 had proposed Other specified trauma and stressor related disorder(as vet had been in IED blast in 2006 - see Mental Disorder diagnosis #2 below.

Unspecified anxiety disorder is synonymous with Neurosis - which vet is

already 70% SC for, in combination with residuals of TBI apparently). I

am therefore not intending to change his Neurosis condition now, but Unspecified anxiety disorder is most accurate diagnosis consistent with DSM-V, as I see it now.

Mental Disorder Diagnosis #2: Cognitive disorder due to Closed Head

iInjury(CHI), due to 6/1/2006 "double-attacked anti-tank mine" IED blast.

ICD code: 294.9 Comments, if any:

Vet was in 2nd Iraq combat deployment - out of 3 tours he served there -

when 6/1/06 IED hit his heavy equipment vehicle(which vet had referred to as 'palitizing loading system').

b. Medical diagnoses relevant to the understanding or management of the Mental Health Disorder (to include TBI): Vet is already 0% SC for

migraine headaches.

Comments, if any:
Vet is already SC for migraine headaches. Vet is already 20% SC for Intervertebral DIsc Syndrome, 20% SC for Paralysis of musculospiral nerve(x2), 10% SC fo paralysis of sciatic nerve(x2).

Vet also apparently had a 2/15/18 sleep study done that indicated a mild

sleep apnea condition.

2. Differentiation of symptoms
------------------------------
a. Does the Veteran have more than one mental disorder diagnosed?

[X] Yes [ ] No

b. Is it possible to differentiate what symptom(s) is/are attributable to each diagnosis?
[X] Yes [ ] No [ ] Not applicable (N/A)

If yes, list which symptoms are attributable to each diagnosis and discuss whether there is any clinical association between these diagnoses

Symptoms(i.e., anxiety, sleep problmes) are due to Unspecified

anxiety disorder, while symptoms(memory problems, headaches) are due

to Cognitive disorder due to CHI.

c. Does the Veteran have a diagnosed traumatic brain injury (TBI)? [X] Yes [ ] No [ ] Not shown in records reviewed

d. Is it possible to differentiate what symptom(s) is/are attributable to TBI

and any non-TBI mental health diagnosis? [X] Yes [ ] No [ ] Not applicable (N/A)

If yes, list which symptoms are attributable to TBI and which symptoms

are attributable to a non-TBI mental health diagnosis see 2b above.

3. Occupational and social impairment -------------------------------------
a. Which of the following best summarizes the Veteran's level of

occupational
and social impairment with regards to all mental diagnoses? (Check only one)

[X] Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or

mood

b. For the indicated occupational and social impairment, is it possible to differentiate which impairment is caused by each mental disorder? [X] Yes [ ] No [ ] Not Applicable (N/A)

If yes, list which occupational and social impairment is attributable to each diagnosis

About 80% of vet's current occupational and social impairment is due

to Unspecified anxiety disorder while about 20% is due to Cognitive disorder due to CHI.

c. If a diagnosis of TBI exists, is it possible to differentiate which occupational and social impairment indicated above is caused by the TBI? [X] Yes [ ] No [ ] Not Applicable (N/A)

If yes, list which impairment is attributable to TBI and which is attributable to any non-TBI mental health diagnosis see 3b above.

SECTION II:

----------- Clinical Findings: ------------------

1. Evidence Review
------------------
Evidence reviewed (check all that apply):

[X] VA e-folder
[X] CPRS
[X] Other (please identify other evidence reviewed):

Vet broiught a 4 page typed letter 1/12/19 done by himself describing

in detail his current ongoing issues("I did not want to forget to tell

you something important"), and vet admits it took him severalhours to

complete(and which he kept revising many times). He brought a 2 page

letter dated 1/27/19 done by his wife ******, a 2 page typed letter dated

1/17/19 done by mother ********, and a 1 page typed letter dated

1/27/19 done by vet's friend/combat comrade(served together in Iraq)

named *******, and all 4 letter were reviewed by me.

Evidence Comments:
CPRS was reviewed by me and included my(***** MD) 12/5 18 Review TBI C+P exam report, as well as 5/16/14 C+P exam report done by Dr *****(sa

well
as Initial 2/18/11 MH C+P exam aslo done by Dr. ******.

VBMS was reviewed by me and included vet's Army DD-214 signed b *****

which included MOS(88M30) Mortor Vehicle Operator,as well as E-6 discharge

rank. His medals included CAB - among others, and he had Iraq combat dates

of 1/03 - 7/03, 8/05 - 8/06, and 3/08 - 6/09 - for his 3 seperate Iraq combat tours.

2. History
----------
a. Relevant Social/Marital/Family history (pre-military, military, and

post-military):
Vet is married ****(and they have 2 sons(around ages 5 and nearly 7).

b. Relevant Occupational and Educational history (pre-military, military, and

post-military): Vet has been working in his current Passport Agency job since 2015(was at an administrative clerk(for a different agency) before that.

c. Relevant Mental Health history, to include prescribed medications and family mental health (pre-military, military,

and post-military):

Vet has been on sertraline 150mg since 9/10/18 - it takes the "edge" off

my problems, but he apparently has been having some sexual side effects(delayed ejaculation) related to that .

d. Relevant Legal and Behavioral history (pre-military, military, and post-military):

Vet has had no legal problems(and no jail time) since the 5/14/16 C+P exam report date.

e. Relevant Substance abuse history (pre-military, military, and post-military):

Vet has had no alcohol misuse disorder problems sicne 5/16/14. He has used no street drugs since 16/14.

f. Other, if any:
No response provided.

3. Symptoms
-----------
For VA rating purposes, check all symptoms that actively apply to the Veteran's diagnoses:

[X] Anxiety
[X] Suspiciousness
[X] Panic attacks that occur weekly or less often
[X] Chronic sleep impairment
[X] Mild memory loss, such as forgetting names, directions or recent

events
[X] Impairment of short- and long-term memory, for example, retention of

only highly learned material, while forgetting to complete tasks
[X] Disturbances of motivation and mood
[X] Difficulty in establishing and maintaining effective work and social

relationships
[X] Difficulty in adapting to stressful circumstances, including work or

a
worklike setting

[X] Obsessional rituals which interfere with routine activities

4. Behavioral observations
--------------------------
Vet was totally genuine at the 1/28/19 Review Mental Health C+P exam.

5. Other symptoms
-----------------
Does the Veteran have any other symptoms attributable to mental disorders that are not listed above?
[X] Yes [ ] No

If yes, describe:

Vet admits to having anger difficulties, 'spacing out' at times, and

general feeling of being confused/overwhelmed. He reports having lost

his social "filter" abilities. He reports previously having been very

"easygoing" prior to the military.

Vet still gets nervous if seeing sandbags lying on the side of the road -

left by construction crew(as that is what he looked for over in Iraq as being a potential IED.)

He has to reorganize plates/trays a certain way, either at home or when leaving a restaurant, respectively.

He denies having any suicidal thoughts("No, I'm addicted to life, I love

breathing".).

6. Competency
-------------
Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No

7. Remarks (including any testing results), if any: ---------------------------------------------------
Vet owns a pistol. He does not hunt - only tried it once, but did not get anything then.

He denied having any current active suicidal or homicidal ideation.

 

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I dont see this exam warranting an increase.  All mh disorders are rated on the same criteria, and you can only get paid for One set of symptoms even if you have 8 different mental health disorder diagnosis.  To get an increase from 70 percent, you would have needed the doc check "Total occupational and social impairment", which is the criteria for 100 percent. 

Instead, your doctor indicated the criteria for 70 percent for MH disorders.  Your doctor indicated you are working (employed).  If this is accurate, its gonna be difficult for you to get a 100 percent rating for mental disorders.  

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11 hours ago, damnitface77 said:

For Starters, I want to thank anyone who takes the time to read this and give me a little perspective. I just got my final C&P results after a series of claims. Currently I am 94% combined rating if I include my Sleep apnea claim (The Dr. wrote it was medically neccesary to use the CPAP, so I do expect the 50%. This C&P below was conducted to separate my anxiety disorder from my TBI disorder. Currently I have a 70% rating for Anxiety with residuals of TBI. I was wondering if anyone could read this and tell me if they think I can expect a separate rating for TBI memory loss based on the Dr's opinion stating that my issue is 80% anxiety and 20% TBI (see note 2b below). If I can get at least a 10% for TBI in addition to the 70% for anxiety, It should push me over the threshhold of 100% schedular. The only edits I made to this was to remove names.  Again, thank you for your time and expertise

70% Anxiety (Trauma with TBI residuals)

50% Sleep Apnea

20% Degenerative Disc Disease

20% Upper Neuropathy Right / 20% Upper Neuropathy Left

10% Lower Radiculopathy Right / 10% Lower Radiculopathy Left

0% TBI Migraines

LOCAL TITLE: COMP AND PEN NOTE
STANDARD TITLE: C & P EXAMINATION NOTE
DATE OF NOTE: JAN 28, 2019@14:30 ENTRY DATE: JAN 30, 2019@11:11:26

AUTHOR: *********** E EXP COSIGNER: URGENCY: STATUS: COMPLETED

Mental Disorders
(other than PTSD and Eating Disorders)

Disability Benefits Questionnaire Name of patient/Veteran: *****

Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination

Request?
[X] Yes [ ] No

SECTION I: ----------

1. Diagnosis
------------
a. Does the Veteran now have or has he/she ever been diagnosed with a mental

disorder(s)? [X] Yes [ ] No

ICD code: 300.00

If the Veteran currently has one or more mental disorders that conform to DSM-5 criteria, provide all diagnoses:

Mental Disorder Diagnosis #1: Unspecifed Anxiety disorder, chronic, severe

disorder.
ICD code: 300.00 Comments, if any:

Vet had been seen initially on 2/11/18 for Mental Health C+P exam done

by Dr. *****(which proposed "Anxiety disorder, NOS" then, while f/u

C+P exam on 2/16/14 had proposed Other specified trauma and stressor related disorder(as vet had been in IED blast in 2006 - see Mental Disorder diagnosis #2 below.

Unspecified anxiety disorder is synonymous with Neurosis - which vet is

already 70% SC for, in combination with residuals of TBI apparently). I

am therefore not intending to change his Neurosis condition now, but Unspecified anxiety disorder is most accurate diagnosis consistent with DSM-V, as I see it now.

Mental Disorder Diagnosis #2: Cognitive disorder due to Closed Head

iInjury(CHI), due to 6/1/2006 "double-attacked anti-tank mine" IED blast.

ICD code: 294.9 Comments, if any:

Vet was in 2nd Iraq combat deployment - out of 3 tours he served there -

when 6/1/06 IED hit his heavy equipment vehicle(which vet had referred to as 'palitizing loading system').

b. Medical diagnoses relevant to the understanding or management of the Mental Health Disorder (to include TBI): Vet is already 0% SC for

migraine headaches.

Comments, if any:
Vet is already SC for migraine headaches. Vet is already 20% SC for Intervertebral DIsc Syndrome, 20% SC for Paralysis of musculospiral nerve(x2), 10% SC fo paralysis of sciatic nerve(x2).

Vet also apparently had a 2/15/18 sleep study done that indicated a mild

sleep apnea condition.

2. Differentiation of symptoms
------------------------------
a. Does the Veteran have more than one mental disorder diagnosed?

[X] Yes [ ] No

b. Is it possible to differentiate what symptom(s) is/are attributable to each diagnosis?
[X] Yes [ ] No [ ] Not applicable (N/A)

If yes, list which symptoms are attributable to each diagnosis and discuss whether there is any clinical association between these diagnoses

Symptoms(i.e., anxiety, sleep problmes) are due to Unspecified

anxiety disorder, while symptoms(memory problems, headaches) are due

to Cognitive disorder due to CHI.

c. Does the Veteran have a diagnosed traumatic brain injury (TBI)? [X] Yes [ ] No [ ] Not shown in records reviewed

d. Is it possible to differentiate what symptom(s) is/are attributable to TBI

and any non-TBI mental health diagnosis? [X] Yes [ ] No [ ] Not applicable (N/A)

If yes, list which symptoms are attributable to TBI and which symptoms

are attributable to a non-TBI mental health diagnosis see 2b above.

3. Occupational and social impairment -------------------------------------
a. Which of the following best summarizes the Veteran's level of

occupational
and social impairment with regards to all mental diagnoses? (Check only one)

[X] Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or

mood

b. For the indicated occupational and social impairment, is it possible to differentiate which impairment is caused by each mental disorder? [X] Yes [ ] No [ ] Not Applicable (N/A)

If yes, list which occupational and social impairment is attributable to each diagnosis

About 80% of vet's current occupational and social impairment is due

to Unspecified anxiety disorder while about 20% is due to Cognitive disorder due to CHI.

c. If a diagnosis of TBI exists, is it possible to differentiate which occupational and social impairment indicated above is caused by the TBI? [X] Yes [ ] No [ ] Not Applicable (N/A)

If yes, list which impairment is attributable to TBI and which is attributable to any non-TBI mental health diagnosis see 3b above.

SECTION II:

----------- Clinical Findings: ------------------

1. Evidence Review
------------------
Evidence reviewed (check all that apply):

[X] VA e-folder
[X] CPRS
[X] Other (please identify other evidence reviewed):

Vet broiught a 4 page typed letter 1/12/19 done by himself describing

in detail his current ongoing issues("I did not want to forget to tell

you something important"), and vet admits it took him severalhours to

complete(and which he kept revising many times). He brought a 2 page

letter dated 1/27/19 done by his wife ******, a 2 page typed letter dated

1/17/19 done by mother ********, and a 1 page typed letter dated

1/27/19 done by vet's friend/combat comrade(served together in Iraq)

named *******, and all 4 letter were reviewed by me.

Evidence Comments:
CPRS was reviewed by me and included my(***** MD) 12/5 18 Review TBI C+P exam report, as well as 5/16/14 C+P exam report done by Dr *****(sa

well
as Initial 2/18/11 MH C+P exam aslo done by Dr. ******.

VBMS was reviewed by me and included vet's Army DD-214 signed b *****

which included MOS(88M30) Mortor Vehicle Operator,as well as E-6 discharge

rank. His medals included CAB - among others, and he had Iraq combat dates

of 1/03 - 7/03, 8/05 - 8/06, and 3/08 - 6/09 - for his 3 seperate Iraq combat tours.

2. History
----------
a. Relevant Social/Marital/Family history (pre-military, military, and

post-military):
Vet is married ****(and they have 2 sons(around ages 5 and nearly 7).

b. Relevant Occupational and Educational history (pre-military, military, and

post-military): Vet has been working in his current Passport Agency job since 2015(was at an administrative clerk(for a different agency) before that.

c. Relevant Mental Health history, to include prescribed medications and family mental health (pre-military, military,

and post-military):

Vet has been on sertraline 150mg since 9/10/18 - it takes the "edge" off

my problems, but he apparently has been having some sexual side effects(delayed ejaculation) related to that .

d. Relevant Legal and Behavioral history (pre-military, military, and post-military):

Vet has had no legal problems(and no jail time) since the 5/14/16 C+P exam report date.

e. Relevant Substance abuse history (pre-military, military, and post-military):

Vet has had no alcohol misuse disorder problems sicne 5/16/14. He has used no street drugs since 16/14.

f. Other, if any:
No response provided.

3. Symptoms
-----------
For VA rating purposes, check all symptoms that actively apply to the Veteran's diagnoses:

[X] Anxiety
[X] Suspiciousness
[X] Panic attacks that occur weekly or less often
[X] Chronic sleep impairment
[X] Mild memory loss, such as forgetting names, directions or recent

events
[X] Impairment of short- and long-term memory, for example, retention of

only highly learned material, while forgetting to complete tasks
[X] Disturbances of motivation and mood
[X] Difficulty in establishing and maintaining effective work and social

relationships
[X] Difficulty in adapting to stressful circumstances, including work or

a
worklike setting

[X] Obsessional rituals which interfere with routine activities

4. Behavioral observations
--------------------------
Vet was totally genuine at the 1/28/19 Review Mental Health C+P exam.

5. Other symptoms
-----------------
Does the Veteran have any other symptoms attributable to mental disorders that are not listed above?
[X] Yes [ ] No

If yes, describe:

Vet admits to having anger difficulties, 'spacing out' at times, and

general feeling of being confused/overwhelmed. He reports having lost

his social "filter" abilities. He reports previously having been very

"easygoing" prior to the military.

Vet still gets nervous if seeing sandbags lying on the side of the road -

left by construction crew(as that is what he looked for over in Iraq as being a potential IED.)

He has to reorganize plates/trays a certain way, either at home or when leaving a restaurant, respectively.

He denies having any suicidal thoughts("No, I'm addicted to life, I love

breathing".).

6. Competency
-------------
Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No

7. Remarks (including any testing results), if any: ---------------------------------------------------
Vet owns a pistol. He does not hunt - only tried it once, but did not get anything then.

He denied having any current active suicidal or homicidal ideation.

 

I don't think TBI and the anxiety can be seperated. 

You could request a 10% increase for your Migraines. And that will put you at 95%. 

Migraine Headaches

Code 8100: Migraine headaches are a type of headache caused by the swelling of the blood vessels in the brain. They are often more severe than other kinds of headaches (stress, sinus, etc.), and so interfere more with the individual’s ability to work and function in daily life. If another kind of headache interferes significantly with daily life, it can also be rated here.

Two things are taken into account when rating migraines: frequency (how often they occur) and severity (how bad they are). To receive a proper rating, it is essential that the physician records these clearly along with how they affect the individual’s ability to work and function.

The term “prostrating” means that the individual must stop all activity, take medication, and either seek medical attention or seclude himself for the rest of the day. The individual is unable to perform any occupational or daily activities either because of the migraine itself or because the migraine medication makes him too drowsy, etc.

The ratings for migraines only go up to 50%. The Rating Authorities, however, can give a higher rating if the case is so severe that 50% doesn’t truly reflect the disability. It is completely up to the Rating Authorities, however, exactly what makes a condition severe enough to warrant a higher rating.

Frequency

Severity

Rating

2 or more times per month

Prostrating

50%

Once a month

Prostrating

30%

Once every 2 months and prostrating

10%

Once every 3 months or less

Prostrating

0%

OR....

Apply for Individual Unemployability if you feel that Anxiety has kept you from working.

 

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If you were unemployed at time of the 70% rating, the VA would have considered you for TDIU.

If the anxiety gets worse to the point you can no longer wotrk- by all means apply for TDIU and also for SSDI.

TBI and anxiety disorders to include PTSD can be separated:

 

"After review of the evidence, the Board resolves all reasonable doubt in favor of the Veteran to find that separate ratings for TBI and PTSD are warranted. While the June 2012 examiner was unable to distinguish symptoms, other examiners have provided evidence of the separate symptomatology for the TBI and PTSD conditions. By way of this decision, a separate 40 percent rating for TBI is assigned effective January 19, 2012. After review of the evidence, the Board resolves all reasonable doubt in favor of the Veteran to find that separate ratings for TBI and PTSD are warranted. While the June 2012 examiner was unable to distinguish symptoms, other examiners have provided evidence of the separate symptomatology for the TBI and PTSD conditions. By way of this decision, a separate 40 percent rating for TBI is assigned effective January 19, 2012."

https://www.va.gov/vetapp18/files11/18152985.txt

The regulations changed on TBI and MH disorders, some years back and the newer regulations are here under a search.

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This holds the new TL on TBI and DC 8045 but I dont have permissions to open it-

It might not apply to this vet but maybe to others-

 

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The new regulations might be in but it does not mean the RO will apply them.  Check your decision carefully and see if the TBI and PTSD are rated separately or if they are lumped in as a psychological disorder.  If not then you can appeal.  The previous BVA decision can be referenced in your appeal but is not precedent.  Note that TBI is defined under diagnostic code 8411-8100 and PTSD is defined under DC 9411.  Therefore TBI is a separate and distinct disability.  The RO's make mistakes in decisions but the BVA is more careful to apply the regulations as required.  

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      - PTSD increase is based off several years of VA mental health treatment and a Nexus letter written by my mental health doctor, which named PTSD, Depression, Chronic Pain Syndrome with depression, Panic D/O with Agoraphobia and survivor's guilt as a diagnosis (last 3 are recently added to records).
      - Knee pain- VA issued me a big knee brace and my primary care (tricare) orthopedics specialist just put me an Ankle-Foot Orthosis (AFO) brace because she says I have drop foot and weakened ankle support which tried to compensate for my weak knee/muscle strength
      - Foot pain- I reviewed all of my previous C&P exams and realized my foot pain rating had dropped from 30% to 10% because the rater misquoted me (lied) on the C&P exam. I told him these insoles and stuff didn't work. that my feet hurt all the time. He wrote, I said they were not effective insoles and I have to use all kinds of feet massages equipment to get through my work days. 
      The primary care sent me to this foot pain doctor. All she did was cortisone shots (3 times) in my feet and tried to up-sell me on her brand of insoles. 
      - Migraines- Been at zero percent since retirement. Last year I was hospitalized twice and misdiagnosed with having TIA and strokes/CVA. My VA advocate put in a secondary claim to my service connected cervical damage.  End result not service connected for CVA/TIA.
      However,  ALL TESTS revealed that I've never had a stroke.  The neurologist diagnosed me with Hemiplegic Migraines. These rare migraines an mimic strokes, causing weakness on one side of the body. They can last from a few hours or in my case,first one lasted 3 months.
      The neurologist provided a letter stating that all of the hospital doctors had misdiagnosed me with having CVAa.  He also diagnosed me with exertional headaches.
       
      I know I'm no more special than the millions of other veterans out here, but this "deny 'til they die" tactic is wearing me down.
       
      Thanks for any advice.
       
       
       
    • By Lemuel
      The question is;  Will I be among the less than 1% Pro Se Petitioners to SCOTUS of the 1% over all Petitioners for a Writ of Certiorari that will be heard by SCOTUS.
      The Petition is Bray v United States Docket No. 18-9532 Re: "The Feres Doctrine" with 15 related constitutional questions.
      The documents can be downloaded from the Supreme Court of the United States, (SCOTUS), web site here:
      https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-9532.html
      The answer will come sometime after the 40 copies have been distributed to the Justices and their Clerks for the November 8, 2019 Conference.  Only 1% are granted a hearing before SCOTUS.  Will the Feres Doctrine continue to stand up as Constitutional continuing a 69+ year old precedence that prevents you from filing a Tort case for your mistreatment and failure to be compensated for subtle but employability disabling temporal lobe seizures ignored by the military and the VA to reduce entitlements?
      Some relief was granted in 2008 for TBI victims.  Those who had TBI claims from 2007 on will be fully compensated.  Those of us from previous wars have been stiffed until we were allowed to file our claims after receiving the 2008 letter.
       
    • By bigoc
      I requested connection for psoriatic arthritis of the right hand, left wrist, and both feet.  In addition to these joints the RO requested a C&P exam of shoulder, hip, elbow, wrist, knee, and ankle.  I have no idea why they did this but it is possibly beneficial to me.  I'll attach this part from my c-file at the bottom on this post.  The VA only decided on the four claimed joints.  The other joints that the VA put in the C&P request were never evaluated or referenced in anyway.  This includes no mention in rating decision letter or during the C&P.  
      Fast forward to 2015 I report for a VA requested future exam for the four SC joints.  I made the complaint of joint pain in 11 joints to include the joints stated above from the 2009 C&P.  These were recorded in the results as pain.  In addition to the documentation in the 2015 exam, they VA acknowledged the additional joint pain and suggested I contact them if I wished to claim these.  I stupidly did not see this until recently. 
      Would I be able to get these joints connected and EED back dated to 2009 or 2015 based on an inferred issue and that no decision was made on the other joints?
      Again the VA is the one that requested the additional joints to be evaluated in 2009 and not me.  Then they were never addressed.  I am interested in this because I have been finding information on claims being considered open if the VA never renders a decision.  While they rarely miss a veteran claim they often miss inferred issues.  This seems like a pretty obvious inferred miss to me.  The VA specifically requested the additional joints. Might be a stretch but this would be significant retro.
       

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    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
        • Thanks
      • 6 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
        • Like
    • Precedent Setting CAVC cases cited in the M21-1
      A couple months back before I received my decision I started preparing for the appeal I knew I would be filing.  That is how little faith I had in the VA caring about we the veteran. 

      One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing.  I could not understand for the life of me why so many obviously bad decisions were being handed down.  I think the bottom line is that the wrong type of people are hired as raters.  I think raters should have some kind of legal background.  They do not need to be lawyers but I think paralegals would be a good idea.

      There have been more than 3500 precedent setting decisions from the CAVC since 1989.  Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.

      The document I created has about 200 or so decisions cited in the M21-1.   Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims.  Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why.  Most of these decision are not cited by the M21.

      It is important that we do our due diligence to make sure we do not get screwed.  I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve

      M21-1 Precedent setting decisions .docx
      • 5 replies
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