Would anyone be willing to look over my husbands new report and DBQs concerning separate ratings for TBI/PTSD A&A Headaches?

[Vet Dog and wife]

 

Would anyone be willing to look over my husband’s new report and DBQs concerning separate ratings for TBI/PTSD A&A Headaches? we also posted a lot of his VA claim docs too.

 

Thank you all very much for all your prior advice. you have helped my husband so much and we truly appreciate all your help.

Edited May 1, 2019 by Vet Dog and wife
need help

[Berta]

You had asked:

"We were told by Berta and others that we need to get separate ratings for his TBI and PTSD. Since he is already rated for PTSD and TBI what DBQ do we use? What does the letter need to say for a proper separation?"

The very first downloads up to page 3 give a solid medical rationale for that point.

 

Can you tell us exactly how the ITF claim was worded?

 

[Berta]

There are 4,281 decisions at the BVA regarding PTSD and TBI ratings.

This is one that I need to read over carefully- and hopefully others will opine on as well.

In part: my notes are in RED

"VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008). " The BUIE decision is established case law and a point that must be made in the claim right away.The Veteran's PTSD is now 100 percent disabling,(I believe the evidence you have should award 100% for his PTSD) and his other compensable service-connected disabilities consist of headaches (50 percent disabling), hearing loss (50 percent disabling), tinnitus (10 percent disabling), and a TBI (10 percent disabling)." 

It seems to me that the headaches and other TBI residuals should warrant more than the 10 in this case, and probably could stand alone as 100%, but that might not be the highest rating VA would give him.

"These ratings are separate and distinct from the 100 percent rating for PTSD, involve different anatomical segments or bodily systems, and, under the combined ratings table, result in a combined rating of at least 60 percent. 38 C.F.R. §§ 3.350(i)(1), 4.25. While the Veteran has been awarded SMC(s), it has not been for the entirety of the appeal period; his award was limited to the period of a temporary total rating from August 27, 2015 to November 1, 2015. As such, SMC at the housebound rate for the remainder of the appeal period is warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)."

https://www.va.gov/vetapp18/files5/18103139.txt

Your husband has past suicide attempts, and suicidal ideation, as I understand the medical  downloads and I feel the PTSD presents the full gamit of a 100% diagnosis .

Vetquest was correct as to the headaches- they need to be claimed but I dont know what rating they would fall under.

My point is and I hope others will chime in-

Do you feel this veteran's PTSD should be listed as his prime SC disability?

Or do you feel that DC 8045, when they properly apply it-NVLSP suggests that any veteran with a similar problem and TBI rating post  Oct 2008 regulations should ask for rating under 8045 now) as DC 9304 warranted the 100% he has now, but does not account at all for a proper PTSD rating:

DC 8045 is explained in the above recent BVA decision thus:

Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are to be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under § 4.25. 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. Diagnostic Code 8045 also stipulates that the need for special monthly compensation (SMC) 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., must be considered. Diagnostic Code 8045 also states that the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of a 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, and 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. A 100-percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. There are five notes that accompany the current version of Diagnostic Code 8045. Four apply to the instant case. 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."

The medical evidence in the DBQs,onto and including Page 3 of the thread, clearly separate the veteran's 2 main disabilities of PTSD and TBI.

(source BVA decision above)

He is catastrophically disabled and should be rated ,in my opinion, the same way my husband was.

He had evidence that would cause post traumatic traumatic , before the TBI from boxing , as I under stand this- due to a Pick Ax causing a SC scar, occipital area, skull, which appears as SC "0" in the 11-8-1999 decision.

They used 7805 for the scar. He was given no rating for headaches claimed as well as a sleep disorder which was claimed and can be due to the TBI or the PTSD.

8099 was the DC code they used for headaches (I need to check that code out)

DC 9499 was given for the sleep disorder -I need to check that out as well....finding the proper codes in 1999

100% PTSD and 100% stroke with dementia (1151) Permanent and Total for both.

 

 

 

 

 

 

 

 

[Berta]

Also I asked Vet wife if he hever had an MRI or CT scan of his brain:

"For regulations in effect prior to October 23, 2008, under Diagnostic Code 8045 subjective complaints such as headaches, recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. The 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma."

https://www.va.gov/vetapp16/files5/1639000.txt

I am assuming he had multi infarct dementia because the rating was 100%, but the 1999 RO decisions states:

9304 Dementia due to head trauma with mood disorder and Post Traumatic Stress disorder.  100% from 7-29-98

Clearly the 9304 decision warrants a CUE claim.

Does anyone here see what I mean? This is why NVLSP suggest vets who were diagnosed with TBI prior to 2008 should ask to be re- diagnosed properly under 8045.

Also this rating sheet declared the veteran incompetent. 

I need to find what they based that on---- the TBI? or the PTSD?

I might not be back here until Friday or Saturday....to work on this claim.

 

[Vet Dog and wife]

Berta, this information that I have compiled may give you some insight into my husband's issues. hope it is helpful and sorry about the repeated information. 

Some information I have put together about my husband’s history and recommendation we have gotten My husband is a 100 percent, permanently and totally, Service-connected, disabled veteran.   1980 Claim In 1980 my husband, Frank opened a claim and was rated 0% service-connected for a scar  In 1997, Frank reopened his claim and received 100% P&T VA service-connected compensation. He was rated totally and permanently 100% disabled. Frank also has PTSD, which is service connected and is combined under his in his 100% rating.

 

Edited May 1, 2019 by Vet Dog and wife

[Vet Dog and wife]

5 hours ago, Vet Dog and wife said:

Can you tell us exactly how the ITF claim was worded? Hi Berta, what is a ITF?

 

5 hours ago, Vet Dog and wife said:

 

 

[Vet Dog and wife]

5 hours ago, Berta said:

Also I asked Vet wife if he ever had an MRI or CT scan of his brain:

Yes, but it came out negative which is common with multiple head traumas with boxers according to the VA Brain-injury unit in Palo Alto . but they  did thorough testing on him concluding he definitely had brain injury due to boxing.