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

[Richard1954]

 I filed for TBI 42 years after the injury. I asked for direct service connection since the active duty medical records documented the injury, My C/P consisted of the doctor asking me to add 2 +2, draw a stick picture in duplication of what she drew after she hid the picture and a few other things, She was trying to see if my memory was impared. It was and I was awarded 40%. But I degress, that doesn't answer your question on how to request service connection for your TBI.

So let me say I have 7 conditions that are service connected as secondary issues.  Every time I made a claim for them I requested secondary service connection because I knew how the condition came to be. For instance, my active duty medical records indicated COPD secondary to Asthma, so I did not really have to make a choice how to claim it.  However, many other conditions that were secondary, were diabetes II secondary to steriods for my lung condition, ED secondary to Diabetes II, Chronic Laryngitis with Dysphonia, secondary to steriods, left knee secondary to my right knee, Knee arthritis secondary to the initial injury, sleep apnea secondary to asthma, eyes secondary to steriods,  Every one of my condition I requested secondary to ( as listed above) . Most of the time if a veteran has a secondary condition he knows what it is and how it came to be, I actually did internet serches to confirm what I though I knew, and provided some of the information when I filed my claim.  When I asked for ED , i requested it secondary to Diabetes II or medications that were prescribed to me for service connected conditions.  The C/P examiner decided it was secondary to Diabetes II.

Lets be real, if the condition did not happen in service, or within one year after service its almost always  going to be secondary ( that is unless you wait to file for something that is in the medical record , like I did for TBI).  I feel if you tell the VA that the condition your requesting service connection for is secondary to a condition you already have,  then you give them a direction to go. If you say the condition is secondary, but you don't tell them what its secondary to,  where are they going to start from,  the beginning and look for all possibilities. They are going to request a C/P and a medical opinion of how you came to have the condition. If they overlook the one condition that actually caused the secondary issues, its possible they would deny the claim.

I have no Idea how you could service connect TBI secondary to something, ( unless you fell because of a service connected condition ) since you would have had to hit your head really hard,  to get a TBI.   There are a lot of issues that can be service connected secondary to a TBI. I cannot think of any way to claim secondary for a TBI, but I am not a doctor.  One thing I do know, VA raters are not medical experts either, all they do is read the evidence placed in front of them and make a decision, they are mainly looking for a medical opinion, and the symptoms that go with that opinion.  Sorry to say but raters are not smart enough to determine where to start if you do not tell them your opinion. Its possible they discredit youir opinion but determine the condition was caused by another service connected issue.  Anyway, you have to point them in a direction. Remember, the rater is reading the evidence and he is going to get a medical opinion that is generated thru the C/P process. If you already have been diagnose with a TBI, you should supply that evidence along with how you got the TBI. 

Finally, when I retired and filled out the form for my first claim, I was advised to write" See medical records"  on the claim form, and the VA will decide what is service connected. That was the biggest mistake I made, why, well for one thing, my medical retirement papers clearly stated that I was retired for Asthma, with COPD secondary,  the file said this 8 times on different forms, What Happened was I spent two years on appeal and finally sent them copies of my medical records ( the same papers they already had) and I was awarded Service connection VIA Cue, at 30% just for the Asthma with 2 years back pay. The VA did not look at my active duty medical records, and rate me for stuff that was in my file. When I filed addition claims and they were awarded, ie: TBI, Hemorriods, Sinusitis, & Epididymitis ( all these items were in my active duty medical records) I tried to get EED's and the Court said since I had not specifically claimed them in 1986, I was out of luck. So with that being said, I think you should give them all the information you have rather than hold back, and again how in the world do you service connect TBI secondary to a condition already service connected.   All the other excuses, about the raters being offended or let them do there job doesn't really cut it in my book. The only time you should  seem dumber than you are is possibly  when you are positive your smarter than the next guy, and with VA raters there is no way to know that, so why take the chance.

BY the way, secondary conditions are rated the same way as direct service connected issues. 

Best of luck with your claim

Edited June 5, 2022 by Richard1954
Spelling, As usual I transpose letters, as my mind works faster than my fingers

[Whodat]

Very well explained. You have hit the nail on the head. 

[jfrei]

I’m curious to what the event in service that caused this did the doctor say in his opinion or dx

[blahsaysme2u]

just as a side- i tried to file PTSD as secondary to my TBI and they merged them to one SC bc of pyramiding...they couldn't distinguish which symptoms where PTSD and which were TBI( even tho i have some that are very specific to TBI and some VERY specific to PTSD, both stem from the same event- IED explosion) 

it did result in higher rating, but they did merge the 2 together...good luck man

[Lemuel]

On 5/27/2022 at 5:15 PM, Richard1954 said:

 I filed for TBI 42 years after the injury. I asked for direct service connection since the active duty medical records documented the injury, My C/P consisted of the doctor asking me to add 2 +2, draw a stick picture in duplication of what she drew after she hid the picture and a few other things, She was trying to see if my memory was impared. It was and I was awarded 40%. But I degress, that doesn't answer your question on how to request service connection for your TBI.

So let me say I have 7 conditions that are service connected as secondary issues.  Every time I made a claim for them I requested secondary service connection because I knew how the condition came to be. For instance, my active duty medical records indicated COPD secondary to Asthma, so I did not really have to make a choice how to claim it.  However, many other conditions that were secondary, were diabetes II secondary to steriods for my lung condition, ED secondary to Diabetes II, Chronic Laryngitis with Dysphonia, secondary to steriods, left knee secondary to my right knee, Knee arthritis secondary to the initial injury, sleep apnea secondary to asthma, eyes secondary to steriods,  Every one of my condition I requested secondary to ( as listed above) . Most of the time if a veteran has a secondary condition he knows what it is and how it came to be, I actually did internet serches to confirm what I though I knew, and provided some of the information when I filed my claim.  When I asked for ED , i requested it secondary to Diabetes II or medications that were prescribed to me for service connected conditions.  The C/P examiner decided it was secondary to Diabetes II.

Lets be real, if the condition did not happen in service, or within one year after service its almost always  going to be secondary ( that is unless you wait to file for something that is in the medical record , like I did for TBI).  I feel if you tell the VA that the condition your requesting service connection for is secondary to a condition you already have,  then you give them a direction to go. If you say the condition is secondary, but you don't tell them what its secondary to,  where are they going to start from,  the beginning and look for all possibilities. They are going to request a C/P and a medical opinion of how you came to have the condition. If they overlook the one condition that actually caused the secondary issues, its possible they would deny the claim.

I have no Idea how you could service connect TBI secondary to something, ( unless you fell because of a service connected condition ) since you would have had to hit your head really hard,  to get a TBI.   There are a lot of issues that can be service connected secondary to a TBI. I cannot think of any way to claim secondary for a TBI, but I am not a doctor.  One thing I do know, VA raters are not medical experts either, all they do is read the evidence placed in front of them and make a decision, they are mainly looking for a medical opinion, and the symptoms that go with that opinion.  Sorry to say but raters are not smart enough to determine where to start if you do not tell them your opinion. Its possible they discredit youir opinion but determine the condition was caused by another service connected issue.  Anyway, you have to point them in a direction. Remember, the rater is reading the evidence and he is going to get a medical opinion that is generated thru the C/P process. If you already have been diagnose with a TBI, you should supply that evidence along with how you got the TBI. 

Finally, when I retired and filled out the form for my first claim, I was advised to write" See medical records"  on the claim form, and the VA will decide what is service connected. That was the biggest mistake I made, why, well for one thing, my medical retirement papers clearly stated that I was retired for Asthma, with COPD secondary,  the file said this 8 times on different forms, What Happened was I spent two years on appeal and finally sent them copies of my medical records ( the same papers they already had) and I was awarded Service connection VIA Cue, at 30% just for the Asthma with 2 years back pay. The VA did not look at my active duty medical records, and rate me for stuff that was in my file. When I filed addition claims and they were awarded, ie: TBI, Hemorriods, Sinusitis, & Epididymitis ( all these items were in my active duty medical records) I tried to get EED's and the Court said since I had not specifically claimed them in 1986, I was out of luck. So with that being said, I think you should give them all the information you have rather than hold back, and again how in the world do you service connect TBI secondary to a condition already service connected.   All the other excuses, about the raters being offended or let them do there job doesn't really cut it in my book. The only time you should  seem dumber than you are is possibly  when you are positive your smarter than the next guy, and with VA raters there is no way to know that, so why take the chance.

BY the way, secondary conditions are rated the same way as direct service connected issues. 

Best of luck with your claim

You would be in the group I am awaiting a BVA hearing on as a "Next of Friend" claim for veterans with TBI  on 11/26/1994 and previously in 1987 letters and a 1988 attempt at a District Court Filing which I have a copy from the National Archives in Riverside, CA.

I have made several posts on the subject.  You are free to ask the BVA to join my filing if you received your award after the 2008 law change.  I do not know how it will go but have an attorney in the wings waiting on the BVA Decision if it does not come out as favorable and the VA does not proceed accordingly.  The attachments are sufficient to identify my BVA claim in my post above on this thread.

Part of the claim is the minimalization of TBI in the Narrative Hospital Summaries following the injury which at that time was the only part of the IPTR that made it into your health record and thus all that is in your VA Comp & Pen file.

The most blatant example is the use of the rehabilitation reports as the hospital summaries for cerebral malaria victims.

[Lemuel]

7 hours ago, blahsaysme2u said:

just as a side- i tried to file PTSD as secondary to my TBI and they merged them to one SC bc of pyramiding...they couldn't distinguish which symptoms where PTSD and which were TBI( even tho i have some that are very specific to TBI and some VERY specific to PTSD, both stem from the same event- IED explosion) 

it did result in higher rating, but they did merge the 2 together...good luck man

TBI, by the 2008 law, is specifically separated TBI from the residuals such as personality syndrome, PTSD etc.  It was for the "dementia" residuals.  Check out 38 CFR chapter 4 on TBI ratings:  Woops, it has changed.  Your rating is probably correct under the new rating system per Hill & Ponton attorneys.  I just did a search to make sure I was not giving misinformation.

You are probably better with the rating if they did the simple adding together of the residuals of the TBI as opposed to my 40% TBI and 30% personality disorder which only add up to 60% in the combined rating schedule and would barely get me in the door for TDIU though I have not worked since September of 1990 and drew SDI from then.  I had a combined rating of only 50% until getting the TBI rating. Fortunately, the Director, Compensation Services recommended that I be granted TDIU back to September of 1985 which was the last day of my full-time employment.  And I received the big award in April of 2020.  And now that I am already TDIU, my cervical disc disease has been rated at 20%.  I expect my lumbar disc disease to be rated similarly since it is secondary to my temporal lobe epilepsy which has not yet been considered as a claimed residual of my severe TBI.

Depending upon your work income history, you might submit an extra-schedular claim to the Director, Compensation Services.  Especially if your past employers made special considerations for you because you were a veteran such as my last employer and a couple of the full-time employers before that.  I only had evidence of that in the file for my last employer.