BVA and SOC/Ramp narrative changes

[awgv001]

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)

SOC -

"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?

[Dustoff1970]

It is unfortunately standard procedure for VA raters and even DROs to totally ignore any and all medical and other evidence including strong evidence in support of your claim and thus requiring you to win your claim on appeal to the BVA and thus delaying by years your service connected disability payments.  It has happened at one time or another to most of us old hands like me for 30 years. And no it is not fair or just but is what it is.

I did not read your entire post due to my tired eyes but you do need a strong current diagnosis of the disability you are claiming from  private or VA doctor/s.  It sounds to me like you have  most if not all of the requirements for service connection.  Maybe others with more knowledge than me will chime in on your post with more info.

You can add more evidence (new) and new arguments on your behalf on your VA Appeal Form 9 to the BVA and I strongly suggest you do so if you can.  After VARO sends you a letter certifying your appeal to the BVA you can again add or evidence and arguments that then has to be sent directly to the BVA and you have 60 days to do this from the date of the certification letter.

My info is not legal advice as I am not and attorney or paralegal or VSO

Edited January 11, 2020 by Dustoff 11

[Dustoff1970]

Please read my just amended reply to you.

[GBArmy]

Dustoff 11 is spot on. We all (well most of us) have been denied by the VA simply because they refuse to acknowledge all the evidence. Then on appeal, the just repeat the initial denial. It looks like you have a reasonable chance at BVA. If you are at 90% you could just go with what you have, or, you could try to add more. like another IMO. I wouldn't; if denied at the BVA, you can always keep the chainn going and appeal again; this time with more evidence. I don't think you are missing much from what I read. The VA's purpose is to deny anyone from getting to 100%. Realy, really to get it scheduler! IMO

[Buck52]

awgv001 QUOTED

''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???

When something's inconclusive, it doesn't resolve your questions and leaves room for debate.

IT MEANS YOU MUST GIVE THEM FURTHER PROBATIVE EVIDENCE TO SUPPORT OR SUBSTANTIATE  YOUR CLAIM/CLAMS.

As  Dustoff 11  & GB Army mention.

[awgv001]

28 minutes ago, Buck52 said:

IT MEANS YOU MUST GIVE THEM FURTHER PROBATIVE EVIDENCE TO SUPPORT OR SUBSTANTIATE  YOUR CLAIM/CLAMS.

 

Got this covered, bringing it with me into the hearing!

 

57 minutes ago, Dustoff 11 said:

Please read my just amended reply to you.

Done! - I appreciate the update! I'll be taking some more evidence with me on my way up!

@Dustoff 11 @GBArmy @Buck52

Thanks for you time and assist with this, I'll keep you all posted with any future development here.

By the way - I didn't mention in the main question that I'm SC'd for all of the following EXCEPT TBI : --- migraines, visual changes (again, thanks neuro quack 2012 that also noted "possible seizures") tinnitus, nerve damage, depression - a small sample of secondaries already SC'd without causation. If I do get approved TBI - since I'm SC'ed for migraines they are likely to lump that into tbi right? in which case if they do...my tbi could possibly be rated back to my EAS date?? This issue should have been diagnoses on active duty, but since it went unreported..hmmm.

Hell, I didn't know what  a TBI was, and the neuro doc wasn't really looking for it, so.....How to time travel? Anyone? LoL

Edited January 11, 2020 by awgv001

[Buck52]

THIS IS  A LITTLE BIT LONG TO READ BUT IT COVERS HOW THE VA RATES A TBI.

However  this is some important information every Veteran that has been diagnosed for a TBI

Assessment of a TBI’s initial severity is measured by:

The results from MRI, PET, CT, or other medical imaging scans

The length of time that a veteran faced an altered state of consciousness

The length of time that a veteran remained unconscious

The length of post-traumatic amnesia

The score the initial trauma receives on the Glasgow Coma Scale

How Does VA Rate My TBI?

VA evaluates a TBI based on the residual symptoms a veteran is currently experiencing as a result of the trauma, according to an Evaluation of Cognitive Impairment and Other Residuals of TBI not Otherwise Classified, under 38 CFR § 4.12a.  VA rates these residuals on a scale of 0, 1, 2, 3, or total, with each of these increments corresponding to a disability rating:

ScaleRating

00%

110%

240%

370%

Total100%

VA divides the rating criteria of TBI residuals into 10 subcategories in order to evaluate the condition.  Veterans are then rated based on the level of severity and impairment in each of these areas of functioning:

Impairment of memory, attention, concentration, and executive functions. According to the VA, executive functions include: rate of information processing, setting goals, the ability to plan ahead, prioritizing, problem solving, decision making, spontaneity, and flexibility in altering unproductive actions or behaviors.

Altered judgement. Is the veteran able to identify their situation, weigh alternatives, and understand consequences to make reasonable decisions?

Inhibited social skills. Is the veteran able to act appropriately in social situations?

Is the veteran aware of: the people around them, their own being, the time and date, where they currently are, and what they are doing there?

Diminished motor activity (while sensory and motor systems are intact). Such as inhibited intended movement.

Visual spatial disorientation. Is the veteran aware of their surroundings? Veterans with visual spatial disorientation may find it difficult to navigate familiar territory, even with direction.

Subjective symptoms. Symptoms that cannot be measured with objective tests.  A veteran must experience three or more moderate-to-severe subjective symptoms in order to be rated for them.  Examples may include, but are not limited to, depression and anxiety.

Neurobehavioral effects. These can include irritability, unpredictability, impulsivity, verbal aggression, lack of cooperation, and impaired awareness of disability.

Worsened ability to communicate. This includes communication by spoken or written word, as well as the ability to comprehend spoken and written language.

Is the veteran conscious, in a coma, or in a vegetative state?

It is important to note that the same symptoms cannot be used to rate two separate disorders.  A veteran’s symptoms cannot be linked to a previously rated condition if they are to be considered as part of the rating for a TBI.  For instance, if you receive a 100 percent disability rating for your depression under the TBI rating criteria, you cannot also be separately rated at 100 percent for your depression.

VA Presumptions for Traumatic Brain Injuries

For many years, the VA faced criticism for not recognizing the severity of TBI and the role it plays in facilitating other serious, crippling conditions. It responded to the criticism in 2013 by proposing new regulations that expanded benefits for veterans with TBI who later develop certain conditions. The regulations went into effect in January 2014.

The new regulations presume service connection for five diseases if precipitated by a service-connected TBI. In other words, if you suffered a TBI during your service, the VA must grant service connection to the following:

Parkinson’s disease: Presumed to be service-connected if diagnosed following moderate or severe service-connected TBI.

Seizures: Presumed to be service-connected if diagnosed following moderate or severe service-connected TBI and doctors have established no other cause.

Dementia: Presumed to be service-connected if diagnosed within 15 years of moderate or severe service-connected TBI.

Depression: Presumed to be service-connected if diagnosed within three years of moderate or severe service-connected TBI or within one year of mild TBI.