Jump to content

  • veteranscrisisline-badge-chat-1.gif

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0

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


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.  


"(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

Link to post
Share on other sites
  • Answers 2
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

2 answers to this question

Recommended Posts

  • 0

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.

Link to post
Share on other sites
  • 0
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.

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Similar Content

    • By XIbodybag
      Hey all,
      Bit of an update.  I have been SC for PTSD at 30% and tinnitus at 10%, denied for two other conditions and my TBI claim was "deferred".  I had my TBI C&P about a month ago and in the process I've recieved two notifications on va.gov that two more exams have been scheduled.  Well I called VES today after not hearing from them about any new appointments for two weeks and the rep on the phone told me that there was no new exam requested...that the VA actually just "kicked back" the C&P two times.  They said they are "reworking" the exam.  Anyone experience this before but not get scheduled for a new appointment?
    • By chibears3531
      I was checking va.gov after receiving the mostly favorable results of an HLR for an earlier effective date claim for migraines where VA called CUE on themselves.
      I say mostly favorable because the effective date claim went back to 2006. The CUE was instead awarded exactly one year back from the date of the intent to file in  March 2019 back to March 2018.
      That's when I noticed a new claim for increase on va.gov for TBI that I did not submit.
      That's where it says under evidence gathering "Request 1- 930 rating not addressed see claim notes"
      I spoke to a VA rep who says that it's an internal review and was about pyramiding TBI and PTSD. I've been mislead by the phone reps before though...
      Can anyone make sense of this?
      Edit- in the HLR rating decision code sheet it says "REVIEWER NOTE: pyramiding under DC 8045 is outside the scope of the current HLR for earlier effective date for migraine." Could be a clue...
    • By XIbodybag
      Good morning hadit,
      I have both ptsd and TBI and believe my diagnosed sleep apnea (mixed sleep apnea, with both central and obstructive sleep apnea) has been directly caused by my ptsd and TBI.  I am not overweight, have no medical issues of the throat or the respiratory system that would cause it.  My question to you all is if I want to file sleep apnea secondary to either of this conditions which one should i file it secondary to?  I've found much more literature tying obstructive sleep apnea to ptsd but also found literature that ties both obstructive sleep apnea and central sleep apnea to brain injuries as well.  Is it possible to file it secondary to both?
    • By Punisher
      I need some guidance or suggestions from the experts.
      I am currently at 100% schedular (temporary, not P&T). My higher Service connections are:
      Dermatitis with Psoriasis (also claimed as psoriasis guttate, eczema/dermatitis)    = 60% Migraine including migraine variants - also claimed as decreased concentration    = 50% Residuals of traumatic brain injury (TBI)    = 40% Insomnia disorder - also claimed as sleep disorder and insomnia    10% and a dozen other 10% ratings for tinnitus, arthritis, degenerative disc/joint disease/lumbar spine, and as well as injuries to every joint. I submitted a PTSD claim and it was moving right along and I'd already completed all C&P exams for it as well as the ones for another set of RFE claims the VA submitted for three other conditions (Migraines, TBI, Insomnia) that are still temporary ratings.
      Now, two of the three RFE claims show as complete and the VA website says they sent a letter; however, one of the conditions (TBI) got moved over to my PTSD claim and the status went from the exams being complete and in the last phase or so, with a projected completion date sometime this month to December!  On top of that, the VA started a claim for "IU" on my behalf without asking me, so they also added the couple of VA forms required with the due date of 7/31/2020.
      The IU part might not sound bad, but I was already 100% (temporary unfortunately) without the PTSD service connection and I believe I made a compelling case for at least 50% of that, if not 70% as I met most of that criteria.  So, I've always heard, read, seen in videos, and even been told directly that when someone is at 100%, albeit temporary, it's not wise to apply for TDIU since it pays the same AND the VA may then reduce other percentages.  Also, as you know, it can be easier for them to later remove the TDIU classification for technicalities.  Lastly, those forms are the worst part for me.  I DO NOT want to have to fill those out, especially the one you have to bring to your former employer.  My company was located off-base, so they never even observed my daily performance.  The military supervisors who were over me have since moved on as it's been over a year.  Finally, I usually burned up PTO to cover all the time away for appts and physical therapy, which they knew about, but as for PTSD issues I was going through, I sure as hell did not disclose to them as it was none of their business, super private, embarrassing, and I would have been worried about my security clearance!
      The only thing about canceling the IU is that I don't want it to look like I AM capable of pursuing "gainful employment."  I would just definitely prefer to retain my 100%, which should be even stronger with a PTSD condition/connection added to my current list.
      What is your take on all this?  Do you know if there's a way that I can have them close or remove the IU portion and the required forms?  Besides not wanting to apply for that or do the forms, I also do not want this to hold the rest of my claim(s) up or give them an easier way to assign lower percentages. 
      Any help would be much appreciated.
    • By Lemuel
      Are you having trouble with a TDIU claim, TBI claim or any old claim that was never developed or decided?
      I posted this earlier on Tbird's question, "Unemployability and Working in a Sheltered Environment...?"
      Just received an example of this in a decision by the Executive Director, Compensation Service which I will attach after redacting.  My part time employment from September 1987 to September of 1990 consisted of working for a CPA business manager of a now deceased movie star.  (Egg and I actor as a hint).  
      The job was a 20 hour per week job by the previous employee which I couldn't keep up putting in more than 40 hours a week.  I'll also attach a copy of my employer's May 7, 1990 statement.  The job paid more than poverty level.
      These documents should help clarify to any who have a question about this subject.  I'll also start my own question where I can answer questions about how I got to this point.  Now I'm just waiting for a $500,000 plus check.  A lot of years in abject poverty under the bridge but I'm now in a nice home which will be fully paid for and I'm having a Japanese spa bath put in in the basement.  Feels good but was a miserable live from 1974 to 2017. Hasn't been bad since I turned 76 in 2017.  Now, at 79, it is even better.
      Still the issue of temporal lobe epilepsy (TLE) to go but it is more an act of activism since additional compensation doesn't mean much to me.  I don't want those with similar organic brain syndromes to mine left behind on that paper trail. TLE is difficult to identify and identification is complicated by the victim being unconscious of the symptoms.  We are thought of as being "drifty", absent minded, procrastinators (from enervations), etc. and no one connects it to our TBI and advises us or gives us a consult to a neurologist for epilepsy evaluation. 
      Look up that $100 dollar word, "enervation".  If you've had a TBI, especially if caused by near by blast concussion or repetitive outgoing heavy artillery (not me, mine was focal left temporal lobe) or p. falciparum malaria, you need to ask your family and friends if you are a little drifty or inattentive at times.  If you've had Motor Vehicle accidents that you blamed on the other guy but it could have been your inattentiveness this is hard evidence.
      If you had malaria and have any of the symptoms I listed, contact me through this board.  Compensation for those victims is the last goal of my life.  At 79, I don't have too many more years to work on it.
      Also, if you have a TBI award post 2008 for a TBI years before contact me.  I filed a case in 1988 in district court as a next of friend making a claim for you that has never been developed.  Same case as my TDIU.  An award to me would be moot because my new TDIU award goes back to 1985.  But we may be able to get that Executive Director, Compensation services to take our TBI awards back at least as far as my claim but possibly all the way back to when the symptoms first interfered with our employability.
      I was finally treated for my TLE in August of 2015 and all symptoms are in remission.  I was confirmed to have TLE in September of 1990 but mistreated with Tegretol which should never have been used for the diagnosis of "atypical absence seizures" and because I had a recorded sensitivity to amitriptyline per the 1990 PDR and every PDR after that to date.  Subsequently, I was diagnosed as having "pseudo seizures" which too many read as being a malingerer.   At 79, I'm more employable now than I was at 35.  But I lost my most employable years to a 3.154 1151 treatment.  It is on my NOD of 01/08/2018 and the claim it is on.  I'll keep everyone posted on its development.
      3526-3527 19900507 Al Marsella Stmt_Redacted.pdf 20200408 - TDIU Review - Admin Opinion_Redacted.pdf
  • Ads

  • Our picks

    • Post in New BVA Grants
      While the BVA has some discretion here, often they "chop up claims".  For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.  

      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
    • Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!

      My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.

      Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
      • 13 replies
    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
    • This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.

      VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
      • 12 replies
    • I don’t say thank you enough to all of you...
      You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.

      Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.

      You all made that possible. Thank you.
      • 8 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
  • Create New...

Important Information

{terms] and Guidelines