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?

[pwrslm]

SOmething to pay attention to.

When you get a C&P exam with a bad opinion you can challenge that with peer reviewed medical literature.  Most of the time, these opinions fail to identify any source proving the basis for the opinion. This can be challenged with medical literature from valid sources.

I can access college library with links to professional journals, as well as Google Scholar that also provides links to professional journal articles. These are  peer reviewed, and considered equal in weight to any opinion that a medical professional can provide. Anyone can use web sites as well that help find articles from journals that are recognized and authored by medical professionals, such as

https://medlineplus.gov/ , 

https://www.merckmanuals.com/professional , 

https://www.ncbi.nlm.nih.gov/pmc/ , 

and Va HealthEVet also has a library with links.

Example: Opinion from C&P exam states that there is no way that your service connected left leg condition can cause your shoulder injury. Claim denied. Request for reconsideration with new evidence can be submitted without an expensive IMO from a medical professional.

New evidence include studies reported in Medical Journals stating that radiculopathy with foot drop frequently cause falls, and more studies that shoulder injuries are commonly caused by falls. Reconsideration includes 3-6 opinions each on both falls and injuries, which disproves the claim that there is no connection between your left leg condition and your shoulder injury. Results: award of 20% for shoulder injury because you proved that the examiner was a clown.

 

[awgv001]

Folks, this was never about a bad C&P exam - this was about a Dr. that did not properly document what was told to him back in 2012 regarding the incident that had occurred - leaving out the important detail that when I blacked out, I hit my head. Sorry for any confusion. He never gave a diagnosis for TBI either as a part of this because he was evaluating  with the assumption that there was no head injury to begin with., and somehow decided to just keep rolling with the incorrect information.

Edited January 16, 2020 by awgv001

[awgv001]

I think I may have found an answer.... Since migraines (can be) are secondary to TBI I wonder how this argument would work since the original claim didn't provide "causation" to the origin of the migraines...nor was a TBI diagnosed until years later.

I bolded an important part because this may be a "loophole" to getting my SC TBI backdated properly....maybe?

III.iv.5.C.3.g.  Correlation Between Effective Date for Primary and Secondary SC Disabilities

The effective date assigned for a secondary SC disability cannot be earlier than the effective date assigned for the causal or primary SC disability.    When a claim for SC for a disability is pending and subsequent development of the claim reveals that the disability is caused by a disability that may be associated with service, the decision maker must investigate the possibility of SC for the unclaimed causal disability as well as SC on a secondary basis for the claimed disability.    The duty to investigate SC for the causal disability as within scope of the claimed issue is prompted when the claimed disability is shown to be secondary to the unclaimed causal disability, and when the criteria under 38 CFR 3.159(c)(4) have been satisfied. If the causal or primary disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disability.  The effective date of benefits for the causal disability is guided by the date of receipt of the claim for the secondary disability. Example:  A Veteran claims SC for right leg pain and numbness.  Development of the claim confirms a diagnosis of radiculopathy that is secondary to an unclaimed back injury.  The back injury was sustained in service.  Sufficient evidence to establish SC for the back disability is of record.  Consider the unclaimed back disability within scope of the claimed radiculopathy and establish SC for both issues with an effective date assigned based on the date of receipt of the claim for SC for radiculopathy.   References:  For more information on determining whether an unclaimed issue is within scope of a claimed issue, see 38 CFR 3.155(d)(2), and M21-1, Part III, Subpart iv, 6.B.2.b the correlation between effective dates assigned for the causal and secondary disabilities, see Delisio v. Shinseki, 25 Vet.App. 45 (2011), and SC on a secondary basis, see M21-1, Part IV, Subpart ii, 2.B.5.

Edited January 22, 2020 by awgv001

[Buck52]

awgv001

if you suffer from a TBI you may have all kinds of Medical problems in the future.

  You may want to check out all the Symptoms a TBI can cause and see if you have any of those?...you be surprised at all these symptoms..if you have any of these symptoms=

   please file a claim on them  rather or not they maybe secondary claims   get your claim in today!!!

[awgv001]

24 minutes ago, Buck52 said:

awgv001

if you suffer from a TBI you may have all kinds of Medical problems in the future.

  You may want to check out all the Symptoms a TBI can cause and see if you have any of those?...you be surprised at all these symptoms..if you have any of these symptoms=

   please file a claim on them  rather or not they maybe secondary claims   get your claim in today!!!

Well @Buck52 I have been SC'd for migraines since forever ago - it was diagnosed as such, and was never linked to TBI as being the cause, nor was TBI claimed upon my exit - so there's the issue.

Also, I will continue to review more on TBI secondaries, and I have some other contentions that very well could be as a result of these injuries. My claim for TBI is currently sitting at the BVA, I have been actively fighting it since 2015, but my SC for migraines goes back to before EAS.

I currently have an in service event(statements), two favorable Nexus/IMOs, and a formal diagnosis among other corroborative evidence in my possession that will be taken with me to my hearing. Two particular notes of which are N&M evidence.

Edited January 22, 2020 by awgv001

[vetquest]

Please do that, looking at secondary's.  If your TBI is SC than they will probably rate it to 2015 when you filed your claim.  The reference you referred to in the relation of primaries and secondary's would be hard to use to get your EED moved to earlier.  Not saying you should not try but I do not think they will go for it.  The VA likes to use the excuse that the evidence available at the time of decision was what was used to determine disability.  Meaning that even though you are now diagnosed with something different the VA does not have to look back and change a diagnosis.  I fought that battle once and was denied outright.