Best Avenue for TBI Claim

[Smirak]

I am currently rated at 90% total (70% PTSD, 10 asthma, 10 tinitus, 20 each shoulder).  I was recently diagnosed with a TBI by a non-VA provider and am going to file for that as a new claim.  However, here's the question.  Since I'm already rated PTSD, would that stand on its own, or would it be considered secondary to TBI?  If secondary, does that somehow affect the rating?  And lastly, what other secondary claims can I be looking at that can accompany a TBI rating?  I know migraines could be one, and I am diagnosed with migraines, but I have never filed a claim for that.  Just looking to get all my options here.

Thanks - Kevin

[Whodat]

Greetings,

You have lots of things to think about here before you make that decision. 

On the TBI, you stated that you were just recently diagnosed for TBI. Now ask you self did you complete the Caluza triangle. 

1. An event or injury while in service

2. A current diagnosis

3. A Nexus. 

As far as rating, maybe brokensoldier may be able to answer that but I believe that it depends on the situation. I have seen some have been rated TBI in their PTSD claim. 

Last you were questioning migraines secondary to TBI. If you meet the Caluza for TBI, then file for migraines secondary to TBI provided that you have the link. I don't think that you can file for a secondary condition for a condition that isn't serviced connected. 

Just my opinion. I could be wrong. 

 

[broncovet]

Kevin:

    You dont have to decide (whether to file primary, secondary, presumptive, etc.). That is the rating specialists job to figure that out.  

     Instead, my advice when you file, "open the door".  In other words:

    I want to file for TBI both primary and secondary to any other  disabilities that may apply.  

    Why burn down any bridges before your cross them?  

Reason:  Lets say you "pick one"..lets say "secondary".   Your doc says, "oh heck no..that isnt related to PTSD..this is caused by a hit on the head from military service.  

    While VA "should" do their job and fix it, changing it to primary, they may just deny, and you have to start over.  

    I dont want to start over!!!!!  I want my benefits asap.  Since its hard to predict what a c and p doc will opine, just leave it open, so you dont have to start all over.  

    Let rating specialists do THEIR job, you do your job.  My job is spoiling grandkids, and I have become an expert "grandchild spoiler".  Ask me anything about that, I can tell you.  

    Some rating specialists "are offended" if they perceive "you" are telling them how to do their job.  So, I dont do that.  I let them decide.  Sometimes its a good idea to appear dumber than you are.  

    Lots of people want to take "smarty pants" and put them in their place.  I prefer it if the VA thinks I know almost nothing.  Then they get to be the big shot.  They already think they are smarter than all Veterans, so I dont want to break the news to them they are not.  Let them figure it out, if they are so smart!

[Dustoff1970]

I agree with broconvet.  In all my successful pro se claims and appeals I used the statement that I am filing for both direct service connection and secondary service connection to another VA SC conditions I may have and I then provide what favorable medical, non medical evidence and arguments I have to support my claim.   Works for me

Even though certain records should be in your file from previous claims such as Army and VA medical records, I still send in any extra but not all copies I have to support the claims as the VA often "looses important records or say no records no evidence"  So therefore redundancy of sending extra copies works well for me.  IN spite of what other BS others may tell you be more concerned with winning your claim and/or appeal than the workload placed on well paid government VARO raters.

As examples: 

1. I won initial and follow on PTSD claims since 1985 based on my Vietnam and Japan 1970 Army medical records for direct service connection proving extensive combat in Vietnam as medevac pilot such as DD214, Purple Heart, CMB, Air Medals and 173rd Air borne DFC writeup  

2. I won a 2003 U.S. CAVC court appeal of CUE of TDIU due to PTSD and this was back dated to date of 1998 PTSD increase and TDIU Claim.  So TDIU was due to PTSD alone.  My TDIU was also made P&T.

3.  Recently won OSA Sleep Apnea appeal secondary to VA PTSD and PTSD medications.

4. In 2017 or before I was awarded VA Agent Orange IHD/CAD Ischemic Heart Disease rating based upon direct service connection of my Army records (DD214, CMB, PH, orders, etc.) to my combat time in Vietnam in 1970 and presumed exposure to AO in Nam.

I have other claims pending for both direct service and secondary causes.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited April 14, 2022 by Dustoff 11

[Lemuel]

On 4/13/2022 at 12:59 PM, Smirak said:

I am currently rated at 90% total (70% PTSD, 10 asthma, 10 tinitus, 20 each shoulder).  I was recently diagnosed with a TBI by a non-VA provider and am going to file for that as a new claim.  However, here's the question.  Since I'm already rated PTSD, would that stand on its own, or would it be considered secondary to TBI?  If secondary, does that somehow affect the rating?  And lastly, what other secondary claims can I be looking at that can accompany a TBI rating?  I know migraines could be one, and I am diagnosed with migraines, but I have never filed a claim for that.  Just looking to get all my options here.

Thanks - Kevin

I would claim the PTSD is the nexus for the TBI even if the TBI event is not recorded in your military health record because of the circumstances of the incident.  If you have a 70% PTSD rating, it should mean you have a combat nexus.  Speaking as a former Navy Hospital Corpsman, I know that field tags were often lost or the period of unconsciousness that occurred before transport was not recorded because the patient regained consciousness or appeared to regain full consciousness before being transported.  Patients often woke up in field hospitals asking, "where am I" more than 24 hours after being transported indicating amnesia and extended the period of related unconsciousness.  

I am still fighting for veterans I know experienced brain damage from cerebral malaria who showed up in the PTSD groups that I attended with my TBI symptoms.  Their acute phase of hospitalization was not recorded in their health record, just the rehab portion.  Thus, the symptoms indicating brain damage are not found in their military health record unless they obtained the acute care inpatient treatment record, (IPTR).

TBI hospital summaries were, in the same way, deliberately minimized.  Often, a patient was admitted unconscious and treated on the ward of their most serious condition.  Later less serious injuries were treated and became the major focus in the Hospitalization Summary with the unconsciousness noted only in passing without the severity or omitted completely.

The difference between PTSD victims and non-PTSD victims, I believe, is a fully function brain.  There are many studies that show that the damaged brain is much more susceptible to stress supporting that PTSD recovery is limited in the TBI.

I would argue that, and I am arguing that I never had a complete required by 38 CFR 4.42 examination and that my effective date should be the date of my first claim for injury.

I have been fighting my claims for a very long time since first diagnosed with a TBI and denied PTSD.  I am waiting for my BVA hearing and am attaching my brief to the BVA and motions filed along with my 10182, (redacted) for anyones review that might find them helpful in filing their claims or appeals.  On request I will also redact and provide my previous BVA Decisions.  This hearing will include the 05/17/2017 BVA remands that were not completed.  Specifically, the remands for "complete" examinations as required by a referenced court precedence.

The motions are numbered with the number of the related issue.

I have an attorney lined up to take it after the BVA Decision.  My brief and motions follow my experience with inadequate representation and 10-year study of the CAVC cases and CAFC cases particularly related to their jurisdiction.  The BVA is the only fact finder.  The only way you can appeal a "factual finding" by the BVA is to prove it is "arbitrary and capricious." 

I was taken advantage of an attorney who refused to do the Appeals Court representation and essentially waited for an $80,000.00 fee from the remand.  I am determined not to let that happen to me again.

20210131 Lem to BVA 10182 signed_Redacted.pdf 20220418 Finale brief to BVA.pdf 20220412 Motion 10 to BVA .pdf 20220307 Motion 1 to BVA .pdf 20220307 Motion 1b to BVA .pdf 20220307 Motion 2 to BVA.pdf 20220307 Motion 3 to BVA.pdf 20220307 Motion 4 to BVA .pdf 20220307 Motion 4b to BVA.pdf 20220307 Motion 6 to BVA.pdf 20220307 Motion 9 to BVA to vacate .pdf

[Lemuel]

On 4/14/2022 at 10:27 AM, broncovet said:

Kevin:

    You dont have to decide (whether to file primary, secondary, presumptive, etc.). That is the rating specialists job to figure that out.  

     Instead, my advice when you file, "open the door".  In other words:

    I want to file for TBI both primary and secondary to any other  disabilities that may apply.  

    Why burn down any bridges before your cross them?  

Reason:  Lets say you "pick one"..lets say "secondary".   Your doc says, "oh heck no..that isnt related to PTSD..this is caused by a hit on the head from military service.  

    While VA "should" do their job and fix it, changing it to primary, they may just deny, and you have to start over.  

    I dont want to start over!!!!!  I want my benefits asap.  Since its hard to predict what a c and p doc will opine, just leave it open, so you dont have to start all over.  

    Let rating specialists do THEIR job, you do your job.  My job is spoiling grandkids, and I have become an expert "grandchild spoiler".  Ask me anything about that, I can tell you.  

    Some rating specialists "are offended" if they perceive "you" are telling them how to do their job.  So, I dont do that.  I let them decide.  Sometimes its a good idea to appear dumber than you are.  

    Lots of people want to take "smarty pants" and put them in their place.  I prefer it if the VA thinks I know almost nothing.  Then they get to be the big shot.  They already think they are smarter than all Veterans, so I dont want to break the news to them they are not.  Let them figure it out, if they are so smart!

The "open door" words my 1974 DAV representative used was "residuals of".  Unfortunately, he used a colon after the "residuals of" and then listed the claimed service-connected items on the 21-4138 that he filled out for me.  The local VA clerk only applied the "residuals of" to the top item in his submission to the RO.  The initial 21-4138 that I singed before signing the clerks 21-526, which he had me come in and sign a couple of days later, only listed the top item which happened to be my 1969 head injury.

So make sure you use your open door words on each claimed item.

[El Train]

Is there anything in your service med records in which a TBI incident occurred?  If so, file a TBI claim.  I had a training accident in which I was seen by a Corpsman after I was knocked unconscious for about 5 minutes.  That one little notation in my records got me approved for a TBI at 70%.  They combined it with my PTSD since a lot of the symptoms overlapped.  They will separate any conditions that don't overlap with your PTSD and rate them individually. Things like your migraines or for example, Meniere's, incontinence, vision problems, etc. 

If there is no TBI incident in you med records, I think it will be an uphill battle.  Not saying it can't be done.  If you do proceed be ready for some serious C&P exams.  I had 5 C&P exams when I filed for TBI.  They redid several PTSD exams as well.  They're going to try and separate TBI symptoms from PTSD.  Hopefully you get good examiners.  I had a bad one and it threw a wrench in my claim for an extra 6 months.  Partially my fault because she pissed me off and she made me pay for it. Ultimately, I ended up 100% PTSD/TBI P&T. 

Reach out if you have any more questions.  Been there done that.