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I’m new to the VA system and new to the forum so please accept an apology in advance if I’m doing this wrong.
In a nutshell, I’m 57 years old, and received a VA rating of 70% for PTSD, and a subsequent rating for TBI for injuries that happened in the Army 35 years ago. The TBI is lumped in with the PTSD because they say it is hard to say what is PTSD and what is TBI. The rating was given just over a year ago when I was 56.
I was under the impression that since I was over 55 years old, the rating would be “locked”, and would not be revisited/re-examined/re-evaluated unless I asked for an increase.
I have a claim that is progressing for hypersonia that a civilian doctor diagnosed and said is “definitely” related to the TBI. QTC robo called and said to get in touch with them to schedule an appointment. When I called them back, they said the appointment is for a re-eval for the PTSD and TBI, and did not mention hypersomnia.
I can’t find anything that says that PTSD/TBI is an exception to the age 55 rule, but perhaps I misunderstand that rule. So two questions I’m hoping someone can help with: 1. Does the re-eval seem correct? I read somewhere in my research that upwards of 35% of VA re-evals are not required and are actually mistakes. And 2. Would there be any harm in calling the VA to talk it through? I also read that the VA “writes EVERYTHING down” and I don’t want to create extra problems for myself with a phone call.
Ultimately, I’m not opposed to a re-eval, as overall I’m in worse shape than I was a year ago, but going through the process of recounting things led to a bad few days, and I simply don’t want to do it again if not necessary. Also, I had a bad experience with the TBI evaluator not reflecting what I actually said, and that’s concerning for this re-eval.
Thoughts from the group?
- Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);
- Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront the difficult questions of what current condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;
- Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;
- Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise (Loeb and Smith, 1967; Chermak and Dengerink, 1987; Metternich and Brusis, 1999; Temmel et al., 1999; Stankiewicz et al., 2000; Mrena et al., 2002).”
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Hi All, I'm new to the VA system and new to the forum so please accept an apology in advance if I'm doing this wrong. In a nutshell, I'm 57 years old, and received a VA rating of 70% for PTSD, and a subsequent rating for TBI for injuries that happened in the Army 35 years ago.