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So, awaiting my hearing - filed in April 2019 - originally went through PEB/MEB - then filed my "first" claim in 2015
This is something that has been sitting in the back of my mind about my claim (4 contentions in appeal, TBI, back, bilateral neuropathy, etc.) that has me puzzled.
When my VSO and I sat down an looked over the paperwork for filing, I took note that my other issues on appeal are being claimed as secondary to tbi. I feel as if trying to SC on secondary may be in question, though the SC is not.
I'm wondering if this may hurt my claim or not because it wasn't until recently that I was SC'd for PTSD(after 3 years and several denials) (Claimed as MST/PTSD - however, there is also evidence of other personal assault(s)...)
I'm focused particularly on my Nexus statements, all of which are from VA Doc's, (and 3 Nexus' in particular) - the Nexus(s) im referring to for tbi does not include a rationale that speaks about the ptsd, but instead notes some other "significant" events leading to tbi.
I have a diagnosis for TBI, but on the last denial it stated that it wasn't a "conclusive" diagnosis.
...what are they talking about???
It says outright on the page(s).
First - the IME/IMO done by the VA specialist - an MD -
"Based on my initial evaluation, and his medical records, I am treating him for symptoms related to a traumatic brain injury resulting from trauma that occurred during his military service."
As if this quote wasn't enough, the next one says (my local VA doc, also an MD),
"I concur with the diagnosis of TBI caused by ..."This was confirmed on 2 separate visits to XXX" .... on active duty" - "It is my medical opinion that it is more likely than not that the current symptoms of TBI .... are a direct consequence of the injury(ies) he sustained on active duty."
I noted that the narrative also changed on the reasons and basis between the SOC and the Denial letter.
Ramp decision for denial ( Jan 2019 ) - "You were previously denied SC because the evidence at the time did not show an event, disease, or injury, nothing in STR's, and no current Diagnosis.
STR's show a consult from (Neuro 2012) which you reported a syncope episode (Blackout) with no history of a head injury or trauma (WHAAATTT!?!? - Red flag here..when you combine with the details from lay evidence - it was witnessed my head struck first, this was also reported to this particular doctor (again 2012) but for some unknown reason, he failed to list it as such) I wish this record could be amended, but instead I'm just using other evidence so they just toss it out. - Ironically this was also noted as a favorable finding because when the good doctor quoted me, he did put in his report that I had an episode of syncope.
"In support of your claim you submitted a lay statement from X which indicates a personal knowledge or observation of etc etc. The lay evidence, however, was not found to be competent and sufficient in this case to establish a link, or to establish that such a link has been found by a medical professional. ----( Not anymore! )
I re-filed in 2017 but they basically threw it out again for "VA treatment records from x to x show that you were seen for symptoms that possibly were due to a TBI. However, CONCLUSIVE findings did not show a Dx of TBI" (To which I had submitted evidence stating otherwise)
"RD dated...denies for no STR's with complaints, treatment, or diagnosis"...Here it says "You stated on your NOD the the injury occurred prior to your deployment....you also submitted a lay statement that you injured your head in XXX, however on XXX You told Dr. X - that you suffered a head injury during deployment. ---- If it happened on active duty, it happened during service right? What are they getting at here? Injuries that could have caused TBI occurred both BEFORE and DURING deployment, I feel like this is them trying to attack credibility.
"On XX your were treated for your vision symptoms by Dr. X - There YOU reported and Dr. X recorded that you denied a history of head trauma and head injury. Your STR's from 2012 list a history of health problems and complaints that you had in service. Head trauma, brain injury, or falling is not listed. Dr. X statement, recording what you stated while receiving medical treatment for a different issue is contemporaneous to your military service and convincing evidence that you most likely did not incur a head injury or TBI in service. Service connection remains denied. -- (hold up, did they just Opine this via SOC? LOL, didn't know that was a thing)
The Nexus for my back injuries and the latter came from my PCP that opined that my back injury was DIRECTLY service connected. - What's your thoughts here on this with regard to what was mentioned above?
I don't know how the VA will eventually connect these contentions, and can only assume how this may pan out.
Anything else that could help me here in preparing for BVA that I'm missing?
I submitted a claim for Sinusitis, OSA,, and Tinnitus. My claim was denied for all 3.
The tinnitus they claim was neither occurred in nor was caused by service. My job on active duty exposed me to gun fire, explosions, tanks, and tracked vehicles. I submitted the Duty Noise Exposure Spreadsheet that displayed my AFSC was rated as highly likely to be exposed to loud noise. In the first Exam they claimed I said my hearing loss was from jets flying overhead. Never said that, so they scheduled a second exam. This one they acknowledged the correct job but I was still denied. The evidence listed on the second decision dd not include the MOS Noise exposure chart I included on the first claim. I never went to sick call for ringing ears because that is just silly (had I known then) and was not something you did. I have had quiet office jobs since separating from The Air Force. What am I missing?
For the OSA claim, I submitted Lay statements from my current wife and my ex-wife as well as explained to the doctor my symptoms and that when I was on Active Duty i had no idea sleep apnea was a thing. I assumed I just snored and was tired because I was working hard. I had a sleep study this past year and was deemed to have severe OSA. In my claim I listed that I believed my osa was related to my cluster headache disability. They responded Cluster headaches do not cause OSA even if there are many people with cluster headaches and also OSA. I experienced a stuffy nose during my headaches on the left side. This was completely different from the closing of my airway when I would sleep. It was just worst if both occurred at the same time. They claimed I have other risk factors such as being male, obesity, and advancing age. Something I did not include in my claim was the fact that I was on the Fat Boy program at one point on Active Duty and my SMR made a reference to obesity. Would this help support my claim. Also in the second decision they said I was a 73 year old male and I am no where near 73 so they probably mixed my records with someone else. What can I do about this?
And Sinusitis, I have a couple diagnosis in my SMR's specifically listing sinusitis. I have had sinus issues since I was on Active Duty. I use a Netti Pot and have been diagnosed post active duty with sinusitis. The DBQ from the QTC Medical Doc claims I have rebound sinusitis because I mentioned using Afrin. I have always been aware of the danger of over use and in my VA records I discussed this concern whenever the VA would prescribe a nasal spray. What am I missing and how can I get this corrected. The errors on the 2 decisions make it seem as if they are not very organized and I have to suffer from their disorganization. Are they supposed to review all of the evidence from the initial claim when you submit a supplemental, or should I have resubmitted all the documents from the initial claim. Are the documents that contain research that supports your claim supposed to be on the evidence list as well? They were not on there and if they did not give those documents equal consideration what is my recourse. Any assistance would be appreciated Thanks for listening.
Welp, Just found out they closed my claim. Surprise surprise, nothing changed EXCEPT they reduced my GERD from 60% down to 10%! WHY and What the?! So apparently that random C&P without my knowledge played a significant part.
So my questions are the following:
1. Should I reopen my claims or file an appeal?
2. How do I go about getting ALL of my C&P claim notes, especially whatever was said from this C&P without my knowledge?
3. Should I even attempt to ask for the much qualified for increase on other areas of my body, that have gotten worse, or fight this last round of let downs?
I try to explain to everyone when you retire or get out and become a veteran, your own company (the VA) treat you like used tissue. Nobody has any use for used tissue...tossed to the side.
I’m in final review for about 40 days after spending almost 5 years in legacy. Peggy says almost done but no date. They have everything since 5/1. I thought ramp was quicker .I opted in 5/13.
I get close then it gets sent back. No one know anything.All you can do is wait
Curious what to do with this piece of information.
I was going through my c&p's and the one I had in Aug 2018 that bumped me to 100% has this line in it.
"He reports breathing difficulties, diagnosed - Obstructive Sleep Apnea. "
I was using my CPAP when my original C&P in 2013 was done. My record has all sorts of references to it, including the VA issuing me on and way. I have the Sleep Study results in my hands.
So what paths are open to me? in the 2013 standards being issued a CPAP w/ an SC (PTSD) related condition should have given me a 50% rating. Today's standards say I need the medical opinion to state' "he will die without it" or other such magic word nonsense.
what is my most likely path to getting it rated and possibly retro pay?
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.?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.?
Vync posted an answer to a question,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?
Buck52 posted an answer to a question,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.
Picked By66 bricks,
JKWilliamsSr posted a question in VA Disability Compensation Benefits Claims Research Forum,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