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A Well Founded Argument For Addition Of Ratings In Excess Of 100%

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"I was a very hard thing for me to break to such a good friend, but integrity should ascend above allowing someone to become so emotionally engaged in something they are applying incorrectly so as to cause additional heart break, and years of frustration. "

I have experienced that too with a few vets I know and a few widows.

Not every claim can succeed. Claims must conform to the legal and medical criteria of 38 CFR.And I think emotions can give us a blind spot with our claims. I have friend who I know will be getting another denial soon.I have had to be very honest with him as to why I foresee a denial.He refuses to comprehend my logic.But when there is no hope -I don't believe in pretending there is.

If I saw any way at all for him to succeed over the past years (he has been denied many times before)believe me- I sure would tell him. I didn't find out the whole story however until I read some of his VA paperwork.His military experience was vastly different than what he told me.

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Teac click on the Drop arrow beside your name and select messenger. Then read your PM's

You were sent one early this morning.

J

Thanks, I had six mesages from different people on the subject... specific to this thread... As long as I have used this board I never paid any attention to that little arrow....

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Rakkwarrior.... thank you for your insight. I REALLY appreciate you responding. You are giving me an opportunity to voice my thoughts on this matter, and offering your insight of the system's workings.

I (and others) have been unable to find any reference, law/regulation, regarding the issue of "what math" is to be used in regard to ratings over the 100% level, other than 38 USC 3.350. Even the VA's own manual, offers little to clarify the issue at hand.

M21-1MR, Part IV, Subpart ii, Chapter 2, Section H (I am referencing this for those that wish to look it up, as I'm sure you are familiar with it), states, "Special Monthly Compensation (SMC) is an additional level of compensation to veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected (SC) disabilities" Further, in M21-1MR (same subpart, etc) (f) has "Showing Entitlement to SMC in Rating Decisions Entitlement to SMC must be reflected in the Coded Conclusion section of the rating decision by noting entitlement to SMC and statutory awards immediately following citation of the combined evaluation of all service-connected disabilities (if more than one exists) listing any anatomical loss as the first entitlement in order of preference over all losses of use, and citing separately each additional specific disability if entitlement under 38 USC 1114(k) is shown for more than one anatomical loss, or loss of use."

I realize that is a manual that the VA uses, but it does reference "basic levels" of compensation, and I believe this goes to the heart of the matter. The second part that I reference, "combined evaluation of all service-connected disabilities), is where, I believe, a discrepancy exists. Though the language is clear, it does not take into account 100% plus ratings. How does a 100% rating, combine with additional rating of 20% & 10%? 38 CFR 4.25 only allows for a 100% rating resulting in an efficiency of 0% (using rounding when applicable..ie, 99%). I have been unable to find the authority (law/regulation) for ratings in excess of 100% to be combined in accordance with 38 CFR 4.25. Reading 38 CFR 4.25, one can understand (may not agree with) the premise of efficiency percentage. Theoretically,as your example shows, unless a Veteran has a single rating of 100%, according to 38 CFR 4.25, and the above referenced M21 section, a Veteran with multiple disabilities, can never obtain a full 100% rating, as each additional rating will be placed against the remaining efficiency. TDIU may well be awarded for a single disability rating, but any and all additional ratings are then deducted, percentage wise, from the remaining efficiency. This brings us right back to, under what authority?!

I believe PR is correct, in his contention, that combining ratings in excess of 100% is penalizing the Veteran. Law/regulation allows for ratings under 100% to be combined, 38 CFR 4.25. The "fairness" of this combination of disabilities is moot, as it is a matter of law/regulation. 38 CFR 3.322 specifies "The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impediment in earning capacity in civil occupations resulting from disability." 38 CFR 4.25, is then used in calculating, what the over all percentage that (those) impediment(s) of earnings would be. Once total disability is established, ie. schedular/extra schedular, additional disabilities can no longer serve as an impediment to earnings, but can serve as an impediment concerning quality of life.

Bradley v Peake did not address the issue of combining ratings in excess of 100%, only addressed 38 CFR 4.24 in respect to how multiple disabilities, from one disease entity, would be rated separately.

I do not find your post, in any way, discouraging, on the contrary, you have provided valuable information!!

lmao.... I started this post this morning, after reading Rakkwarrior's post.... Gee, I LOVE this POS computer!

Edited by WAC-Vet75
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Your statement:

"Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, single disability independently ratable, the BVA noted that the TDIU was primarily based, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%."

caught my eye, because I used a prior Board Decision that stated just the opposite, that OBS is a physical disorder and PTSD is a mental disorder. My husband has been rated 30% for organic brain syndrome since 1993, and it's been under appeal and the subject of two writ petitions since that time, still unresolved. The last C & P he received for OBS resulted in the examiner diagnosing him with PTSD, as well, so we filed a separate claim stating that PTSD was a mental disability, while OBS was a physical disability (in our case, the result of a brain tumor) per Board Citation Nr. 0825366, Docket No. 96-18976, Dated 7-29-08 that stated in part:

"In July 2005, the Board remanded the issue of a separate

rating for cognitive disorder. In February 2007, a VA

examiner clearly separated the cognitive disorder from PTSD.

Because the Board now has jurisdiction to address service

connection for OBS, we must ask the VA examiner to clarify

whether OBS represents a disability separate from cognitive

disorder. Although the February 2007 examiner stated, "I

did not find evidence of another psychiatric disorder in

today's examination", this statement rules out the presence

of other mental disorders, but does not tend to rule out the

presence of OBS, which is not a mental disorder. Rather, OBS

appears to be an organic disease of the central nervous

system. See 38 C.F.R. § 4.124a, Organic Diseases of the

Central Nervous System, Diagnostic Code 8045, Brain disease

due to trauma. "

Edited by vaf
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Your statement:

"Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, “single disability” independently ratable, the BVA noted that the TDIU was “primarily based”, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%."

caught my eye, because I used a prior Board Decision that stated just the opposite, that OBS is a physical disorder and PTSD is a mental disorder. My husband has been rated 30% for organic brain syndrome since 1993, and it's been under appeal and the subject of two writ petitions since that time, still unresolved. The last C & P he received for OBS resulted in the examiner diagnosing him with PTSD, as well, so we filed a separate claim stating that PTSD was a mental disability, while OBS was a physical disability (in our case, the result of a brain tumor) per Board Citation Nr. 0825366, Docket No. 96-18976, Dated 7-29-08 that stated in part:

"In July 2005, the Board remanded the issue of a separate

rating for cognitive disorder. In February 2007, a VA

examiner clearly separated the cognitive disorder from PTSD.

Because the Board now has jurisdiction to address service

connection for OBS, we must ask the VA examiner to clarify

whether OBS represents a disability separate from cognitive

disorder. Although the February 2007 examiner stated, "I

did not find evidence of another psychiatric disorder in

today's examination", this statement rules out the presence

of other mental disorders, but does not tend to rule out the

presence of OBS, which is not a mental disorder. Rather, OBS

appears to be an organic disease of the central nervous

system. See 38 C.F.R. § 4.124a, Organic Diseases of the

Central Nervous System, Diagnostic Code 8045, Brain disease

due to trauma. "

DC 9327 is listed under mental disorders, DC 8045 is under Neurological disorders. Was the rating for DC 9327? The above BVA decision could well be used in argument for OBD to be ruled under TBI! What I stated before was referencing DC 9327, as a mental disease. I believe the VA would have a well founded argument, based on 38 CFR 3.350 "separate and distinct and involving different anatomical segments or bodily function." Now, someone who had a stroke AND PTSD, the two are separate and distinct, as one is mental, and one is physical.

38 CFR 4.130 "Organic mental disorder, other (including personality change due to a general medical condition)" The general medical condition, rated separate from DC 9327, would be separate, but two mental conditions, IMO, does not meet the "separate and distinct" criteria.

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Your statement:

"Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, “single disability” independently ratable, the BVA noted that the TDIU was “primarily based”, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%."

caught my eye, because I used a prior Board Decision that stated just the opposite, that OBS is a physical disorder and PTSD is a mental disorder. My husband has been rated 30% for organic brain syndrome since 1993, and it's been under appeal and the subject of two writ petitions since that time, still unresolved. The last C & P he received for OBS resulted in the examiner diagnosing him with PTSD, as well, so we filed a separate claim stating that PTSD was a mental disability, while OBS was a physical disability (in our case, the result of a brain tumor) per Board Citation Nr. 0825366, Docket No. 96-18976, Dated 7-29-08 that stated in part:

"In July 2005, the Board remanded the issue of a separate

rating for cognitive disorder. In February 2007, a VA

examiner clearly separated the cognitive disorder from PTSD.

Because the Board now has jurisdiction to address service

connection for OBS, we must ask the VA examiner to clarify

whether OBS represents a disability separate from cognitive

disorder. Although the February 2007 examiner stated, "I

did not find evidence of another psychiatric disorder in

today's examination", this statement rules out the presence

of other mental disorders, but does not tend to rule out the

presence of OBS, which is not a mental disorder. Rather, OBS

appears to be an organic disease of the central nervous

system. See 38 C.F.R. § 4.124a, Organic Diseases of the

Central Nervous System, Diagnostic Code 8045, Brain disease

due to trauma. "

It is of utmost importance to keep in mind the last paragraph above

is in relationship to the criteria of DC 8045 that was in effect

PRIOR TO THE REG CHANGES of Oct. 2008 !

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