New rating?

[Bluntly]

Greetings hadit family finally received my new rating on tbi that was a Bva remand and service connected on January of this year. Since service connection I had to attend 3 c&p exams in regards to the tbi, which were the following tbi, ptsd, and headaches. Today I received my new rating decision which they combined my tbi with ptsd but this didn’t change my overall percentage(70%). No increase on the ptsd and just 10% for the tbi.

In my rating decision it only talks about the tbi and ptsd exams with no mention of the headache exam. The headache exam was for residuals of the tbi, which was the last exam I did but no new rating in the decision letter in regards to that c&p exam. My question is how come I didn’t get a new rating for my headaches? Which is currently at 0%. Why send a veteran to a c&p exam if you’re not going to rate him? Thanks for your time and replies as any insights are appreciated as I figure out my appeal approach.

Edited May 16, 2023 by Bluntly

[Bluntly]

Greetings Hadit Family,

Back with an update and a couple questions to follow of course. So my supplemental claim for headaches at 0% are continued, I appealed and as I type or speak lol a HLR is where I’m going this time in regards to my headaches. What’s crazy about this is they listed all the evidence from when I got out til now, but that Qtc exam I attended to in March of this year, that’s the one I keep saying is missing. In regards to my HLR for ptsd/tbi it’s been in pending decision approval as of last week and this my second week from having my informal conference. I’m real skeptical about this one because they denied the increase for headaches, so I’ll post back when this HLR is over with.

Now to the question, when I first decided to stay in the fight with the VA, my first claim was tbi. In the process of waiting I learned I can put in for increases for my other disabilities and I did. My tbi claim was submitted 7-11-2016 and my increase for ptsd was submitted on 11-16-2016. I became TDIU from my ptsd alone, which is rated at 70%, I am now service connected for the tbi at 10% as of this year and dated back to my original filing date 7-11-2016.

They combined the two and this didn’t change my rating, it stayed at 70%. Now from 7/11/2016-11/15/2016 my rating was 50%, being that they combined the two should there be a difference in percentage or pay for the 4 months in between? Also even tho they continued my headache rating at 0%, they changed my effective date to date of claim 5-16-23, why? When my effective date before was 06-21-2009, which was my exit date.

 

Edited September 7, 2023 by Bluntly

[broncovet]

HLR specifically excludes new evidence, and it sounds like you have, indeed, new evidence where you posted:

Quote

they listed all the evidence from when I got out til now, but that Qtc exam I attended to in March of this year, that’s the one I keep saying is missing.

You also asked:

Quote

They combined the two and this didn’t change my rating, it stayed at 70%. Now from 7/11/2016-11/15/2016 my rating was 50%, being that they combined the two should there be a difference in percentage or pay for the 4 months in between? 

Yes, you should have gotten paid for the 4 months "if it meant an increase in your combined rating".  What did the decision say?  

    Frankly it sounds like you have been hornswaggled on the effective date, and need to appeal that, too.  

The general rule for effective dates is always "the later of the facts found or date you applied".  The "facts found" means the date your doctor says your symptoms began.  

Sometimes, when you go to an exam, the doctor does not state the date your symptoms began.  The VA often assumes you your symptoms began the date of the exam.  

Sometimes this means you need an imo doctor to opine, "The Veterans headache (ptsd, tbi, etc, etc) symptoms were noted on his medical exam dated June 14, 2008", for example.  This statement can establish a "facts found" statement resulting in an earlier effective date upon your appeal.  (reminding you your effective date is the later of facts found or date you applied)

    There are exceptions to the general effective date rule, such as the submission of new evidence, which is governed by 38 cfr 3.156.

https://www.law.cornell.edu/cfr/text/38/3.156

 

 

 

 

[Bluntly]

2 hours ago, broncovet said:

 

HLR specifically excludes new evidence, and it sounds like you have, indeed, new evidence where you posted:

 

Appreciate your support as always and I filed a supplemental claim for the headaches because it wasn’t addressed in my ptsd/tbi appeal. Then once the supplemental claim was completed, that exam still wasn’t listed as evidence. Which is why I’m trying the HLR to see if it was an error on their part.

2 hours ago, broncovet said:

Yes, you should have gotten paid for the 4 months "if it meant an increase in your combined rating".  What did the decision say?  

    Frankly it sounds like you have been hornswaggled on the effective date, and need to appeal that, too.

I’m on it! Which is why I filed the HLR to appeal the rating and effective date. Hopefully something goes in my favor as it’s still in pending decision approval. My effective date I believe should be my date of discharge, as the BVA clearly recognized the first diagnosis of a tbi in my STR’s. Also in the letter it addressed my combined percentages for ptsd/tbi and said it didn’t change my overall percentage.

I get that part of not changing because it was only 10% but the letter only addresses the right now. It doesn’t speak of that 10% being added to my ptsd at the time when it was at 30%. Now if they combined the tbi then with the ptsd, I believe it would result in a change. The letter just doesn’t address the issue of the combination back then only of the right now. I appreciate your time and insights as always and once this HLR is over I’ll update you then, hopefully not that much longer, should be any day now.

[broncovet]

HLR is likely to be processed much faster than a BVA appeal.  Unfortunately, HLR is pretty much another VARO decision

(Yea, its supposed to be a "senior" rater), where you were denied earlier with similar circumstances, because HLR excludes new evidence).  

Since HLR is faster, I appreciate the the desire to get er done faster.  But, does it really?  MAYBE.  IF YOUR HLR IS UNSUCCESSFUL, THEN YOU NEED TO APPEAL TO THE BOARD, and you just wasted all the time you invested in the HLR.  

If you look at the BVA chairman's report, you will see that "about" 80 percent of Board decisions are either awarded or remanded, and. a much lower percent are denied.  

https://www.bva.va.gov/Chairman_Annual_Rpts.asp

On page 49, of the most recent report, it says that an average of 17.3 percent were denied at the board level.  This means about 82 percent were awarded, or remanded or "other".  So, you have about a 4/out of 5 chance (80%) at getting at least a remand, which often turns into an award, sometimes with an IMO.  Those are good odds.  

If you review the Chairmans report further, you will see your chances at the VARO are not nearly as good.  

For that reason, I skip the HLR, and go to the BVA.  It saves time in the long run.  But not everyone agrees with my suggestion of skipping HLR, so use your discrection.  Its your famiily and your money.  So, you have different circumstances than I have.  But for me, I skip HLR for reasons, above.  

[Bluntly]

On 9/7/2023 at 11:15 AM, broncovet said:

For that reason, I skip the HLR, and go to the BVA.  It saves time in the long run.  But not everyone agrees with my suggestion of skipping HLR, so use your discrection.  It’s your famiily and your money.  So, you have different circumstances than I have.  But for me, I skip HLR for reasons, above.  

UPDATE:

The BVA is where i will have to go again. Ptsd is continued at 70, tbi continued at 10 and kept it combined with the ptsd. Also effective date denied for the tbi, Smc S wasn’t mentioned even tho I brought it up during my conference. She said she’ll look into, so I’m confused on what this means:

”The evidentiary record closed as of the date of notice of our prior decision. VA received additional evidence after the record closed that was not considered as part of this decision. If you would like VA to consider this evidence, you may submit a supplemental claim at any time; however, VA must receive your application within one year of the date of notice of this decision to preserve your right to receive the maximum possible benefit.

The evidentiary record in a higher-level review is limited to the evidence of record as of the date the agency of original jurisdiction issued notice of the prior decision under review. The higher- level adjudicator may not consider additional evidence. Therefore, VA will only consider evidence received by the VA prior to or on March 27, 2023 for rhinitis. Further, VA will only consider evidence received by VA prior to or on May 16, 2023 for post traumatic stress disorder (PTSD) with traumatic brain injury.“

I’m confused because idk what evidence they’re talking about that was not considered because it was received after the date of decision. I’ll give the DAV a call on Monday to see about this so called evidence that wasn’t considered at  the time.

Edited September 9, 2023 by Bluntly

[broncovet]

Yes, its a good idea to know "what evidence the VA had, and when they had it."  (prior to or after the decision).  

If they did not have evidence at the decision, then consider 38 cfr 3.156 (new evidence).  

Your dav guy, if he has vbms access, should be able to tell you "what" evidence the VA had when rendering a decision.  You also have to look at the evidence section.  

Sometimes va is vague with the evidence section.  They put stuff like "medical records from 2 sep 1984 to Aug 23, 2023".  Well that does not specify if they had a doc exam on May 15, 2015, who stated you were at least as likely unable to work due to your sc conditions" for example.  

But, if they listed a medical exam on May 15, 2015 by Dr. Johnsen, then they were supposed to have considered this evidence.  So, in that case the BVA owes you a "reason why" this favorable evidence was not considered or was rejected by the board.  The board could state, "The May 15, 2015 exam, while favorable to the Veteran, was insufficient because (boards reason) the exam was not thorough, and a conficting exam of June 12, 2019, exam which included xrays, and other medical tests conflicted with this exam.  Since the June 12, 2019 exam was more thorough, the board deems that the preponderance of evidence is against the claim.  

Remember, if the board renders a decision and the reaons and bases is incomplete or inadequate, you can hire an attorney to appeal at the cavc, which happens often, that the reasing was inadequate.  If the cavc remeands for that reason, you can then submit new evidence, such as an IMO, to refute the inadequate exam, and offer additional favorable evidence.  

EAJA compensates almost all of Veterans for attorney fees at the cavc level, when the CAVC awards or remands the claim.  Many attorneys will agree to represent you at the CAVC, with a bva denial, for only eaja fees if they think the reasons for denial were inadequate.