Would you like an earlier effective date for your TBI rating?

[Lemuel]

Are there any veterans with traumatic brain injuries prior to the effective date limitations in the 2009 VA letter recommending application for benefits under the 2008 change in the rating schedule?  Would you like to join as a joint claim on my "next of friend" claim on your behalf in 1994 for an earlier effective date (EED)?

The reason I am asking is that I have an unadjudicated Substantive Appeal that could take your effective date back to at least 1988 under 38 CFR 3.321(b) and possibly based upon your history back to the earliest signs of difficulty.  (copy and pasted at the end)

I recently received a TDIU award back to September of 1985 via a BVA remanded unprocessed extra-schedular claim under 38 CFR 4.16(b) which applies 3.321(b) to individual extra-schedular claims.  It appears the Executive Director, Compensation Services, Beth Murphy, grants EED based upon history not necessarily claim date.  The date she granted me was my last full time employment, two years before my extra-schedular claim.

Attached is my unadjudicated November 26, 1994 Substantive Appeal to VARO Denver's May 6, 1994 Statement of the Case (SOC).  The 11/26/1994 SA includes a "next of friend" claim for all veterans with organic brain syndromes. 

I was trying to get an Administrative Hearing for the purpose at the time and had not found 3.321(b) yet. 

Now that I have connected the dots properly I believe I'll finally be able to accomplish what I set out to do on the recommendation of Dr. "Hook", a one armed psychologist who cornered me after a PTSD group therapy session on my bringing up the organicity of many of the individual's PTSD complaints, including one with grand mal seizures and suggested a therapy route for me would be to take up activism on their part.  I was having trouble staying employed and was not cognizant yet that my problem was absence and complex partial seizures from temporal lobe epilepsy caused by my TBI in 1969.  His thought was that the activism on behalf of others would reduce my depression from lack of employment with my retained 126 verbal IQ.  Still don't understand the deficit to a 98 visual spatial IQ.  But it has probably caused delays in my accomplishments even on this project. 

I have an attorney who will be working on my part for 20% of my back pay.  I will ask him to ask the Executive Director to grant EAJA in the payment of fees because of the long history of obstruction especially by VARO Denver.  I just connected the dots on the way to redirect my approach to this reading a response from Broncovet to one of my posts on another question I had.  So, will have to discuss with my attorney how to bring others along and if he'll take others in support of my claim and satisfy with just 20% of my back pay.

The optional avenue would be to put your own claim in but without my BVA found medical opinion expertise and the attorney's legal back up.  I'd say my attorney's guidance in getting me an award of over $400,000.00 EED for TDIU (of which he received over $80,000.00) was worth the cost.

From my BVA Decision:  "In this regard, he is competent to report on factual matters of which he had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that the Veteran's statements are credible."  I believe this statement can be expanded to include my first hand study of organic brain syndromes including those for cerebral malaria in trying to understand my own condition and lack of employability at the time.  This study includes a basis background of 13.3 years as a Navy hospital corpsman.  There is also 3.159 which defines competent evidence:

"(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses." 

My attorney is also located in San Diego with access to one of the most recognized brain science medical schools in the country.  UCSD Medical School.  And I have a digital library of, "authoritative writings such as medical and scientific articles and research reports or analyses", that will be helpful.  

3.321(b)

"(b) Exceptional cases (1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in 
these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent 
periods of hospitalization as to render impractical the application of the regular schedular standards."

 

 

19941126 Lem to BVA sub appeal copy Cheye_Redacted.pdf 2868-2887 19940526 SOC 1992 appeal_Redacted.pdf

[iraqx2]

This very interesting. I was given a rating effective date of 2009 but it was from an explosion that was documented to have happened in 2003. I am 100% for TBI. Its a nasty sickness and no true cure for it. I wish VA would change the rating scheme. The injury took place when the incident happened, only worsen through time.

[Lemuel]

5 hours ago, iraqx2 said:

This very interesting. I was given a rating effective date of 2009 but it was from an explosion that was documented to have happened in 2003. I am 100% for TBI. Its a nasty sickness and no true cure for it. I wish VA would change the rating scheme. The injury took place when the incident happened, only worsen through time.

You don't say what you were before you got 100% in 2009.  I presume you have a blast induced TBI as opposed to a focal TBI from an object hitting you.  Those often induce temporal lobe epilepsy (TLE) which is debilitating but not obviously so.  Enervations (sudden losses of energy and muscle tone), driftiness, concentration difficulties, nausea episodes, Meniere's syndrome (dizziness), etc.

Suggest an EEG to your PC and request a comparison of it to the https://europepmc.org/article/PMC/2995886 study in the consult.  Also published by NIH in BRAIN, Journal of Neurology: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2995886/

I went from 1969 to 2015 getting worse except for a couple of years when I was taking Gabapentin for nerve pain before it was recognized for TLE.  I didn't connect the difference because it wasn't as good as what I am taking now.  Keppra.

It has really made a difference in my life.  

My injury was left frontal affecting the temporal lobe per the EEGs and neurobehavioral testing for TBI.  I received TDIU back to September 16, 1985 based upon my employment record and my Social Security CAVES report from when I applied for and received SSDI.

My unadjudicated Substantive Appeal asks for an Executive Director, Compensation Services, finding 14 years before the 2008 change in the TBI law and the 2009 letter that most of us received our TBI award on.  In addition to that, 3 of us filed a tort claim in the District Court, Central District of California in 1988 with earlier claims. 

Because of the Next of Friend claim for all similarly affected veterans, the general sections of 38 CFR Chapter 4 come into play.  The rating schedule is stated as only a guide giving the purpose of rating as diminishment of employability.

My unadjudicated Substantive Appeal will first go to the BVA and then should be forwarded to the Executive Director.  After that it would become appealable to the Court of Appeals for Veterans Claims and up if necessary.  I believe all you need to do is to ask your representative to hook on to the unadjudicated SA attacked to my first post and essentially come along for the ride.  Or, if you don't have a representative and would like to join with my attorney let me know here.