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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.”
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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 e...