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RockyA1911
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Posts posted by RockyA1911
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Yes I did send the VA 21-8940, but Priority Mail with Delivery Confirmation. I feel that is irrelavant at this point because the 28 Dec 2006 Rating Decision received had the IU issue in paragraph 6 stating that IU is deferred pending addition information. So they have it, and it was there in Jan of 06 when I received another copy of my C-File.
There isn't a lot of stuff going on with my claims. I just have a NOD and CUE all related to skull loss and basically the same and the IU that they were working on and it is documented.
By the way, anybody else hate this new view. It appears the viewing of the website pages are now in "Landscape" instead of "Portrait" like it use to be. Now you have to scroll all the way across the page to read the threads. This needs to go back to the old view of two days ago. I don't understand why T-Bird doesn't fix this. This is not a change for the better of the site.
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You know,
Here is another claim of mine that has disappeared now without a decision. I originally submitted my official claim for TDIU and provided both an IMO MD and VA Neuropsychologist evidence of my unemployability clearly such as the MD and VA N.P. statement that "He is unemployable due to his disabilities."
In rating decision dated 28 December, 2006 in paragraph 6. It stated that my claim for Individual Unemployability is "deferred" pending additional information. In the evidence portion it referenced the IMO MD letter and the N.P report.
Here came the 21 February, 2007 rating decision. The evidence that was present in the Dec decision is still present under evidence. It granted service connection of skull loss and rating of 30% and that was it, no mention at all of the pending deferred IU claim.
I called the 800# this morning and was told all my claims are complete and I have nothing pending. I asked her what happened to my pending claim for IU. She responded with "When did you file your IU claim?" Came back on the line and told me they don't have anything on it. So I copied the claim I filed dated 5 July 2005, attached the page of the Dec decision stating it was "deferred" and again attached the two evidence references listed in both decisions.
I put a cover letter on it demanding the status of the IU claim in writing. I also asked "What additional evidence?" And Where is my claim for IU and what has happened to it now as the VA has had it almost two years and it is mentioned in the last two recent rating decisions.
I don't know what it is with my claims. It appears no matter what, one of them just all of a sudden drops of the face of the earth in the blink of an eye, just like my retro skull loss CUE.
I am beginning to think the VA is just playing with me now. There are just too many coincidences.
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That is exactly what I did Vike,
I filed a NOD against the 21 February, 2007 decision. Two issues I nodded were the 30% rating and why it should be 50% and ED of 11 July, 2005 and why it should have an earlier effective date of 28 Nov 1976. The rating decision did grant the service connection of skull loss. I had all the same evidence presented in the claim dated 11 July, 2005 requesting EED of 28 Nov, 1976 as is in the CUE and NODs just submitted as justification for 50% skull loss and EED and still was awarded 30% and ED of 11 July, 2005,,,,,AND THAT WAS THE TIGER TEAM.
Vike, What makes you think if I take the DRO route, the same thing won't happen that happened in the 21 February, 2007 decision? I'm just curious because I have beat the VA over the head with this same argument with the same evidence. Why would a DRO not read it and provide the same decision?
The CUE is filed against the rating decision dated 25 April, 1977 because the adjudicator made "clear and unmistakable error" CUE in not granting direct service connection of skull loss. Had this decsion not been flawed, I would have received "service connection for skull loss" with an evaluation of 50% per 38CFR4.71a DC 5296 (3.133 sq in (20.25 sq cm.) in addition to the direct service connection for PCS residuals and award of 10% (DC 8045 -9304) with effective date of 28 November, 1976. This is total combined rating of 60% and a 60% rating is undebatable and warranted due to the flawed 25 April, 1977 rating decision.
I sent another page called an ammendment to the CUE I sent yesterday with something like the above paragraph to call to their attention that it is a 60% combined rating I seek, not 50%.
There is a big difference in retro between 60% monthly payments minus actual monthy payments received at 10% comp for the last 30 years and just 50% retro for 30 years. They could have just granted the 50% for skull loss and service connected it. Whew! I'm glad I caught that. Will they allow this short paragraph to be added to the initial CUE I mailed yesterday?
So I figure with a NOD on the Feb, 2007 decision, and the CUE for the 25 April decision one of these or both might come through for me with 60% combined retro over 30+ years........keeping fingers crossed!
So do I have all the bases covered now? And will this take a lifetime again to get a decision? I have already wasted the past two years with the EED for skull loss and service connection and have gotten nowhere.
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Hey Terry,
I mailed the CUE to the VARO since the error was made by the VARO. The VBM that Berta referred to was explicit. If the error occurred at the RO, the CUE is against the RO. If the error occurred by the BVA, then the CUE would be against the BVA.
If the VARO rules against the CUE, then I will appeal to the BVA having shown that the CUE was submitted to or through the RO first since they committed the error.
Either way it will all come out in the wash I do believe. Lies don't last, the truth will remain forever and ultimately overcome an objections. If there are some technical such as whether or not the 1977 decision is or is not considered a final claim and denied. If that is the only objections, then I will submit it again stating it is an open claim and reference the decision that ruled on it being an open claim. So, if it goes back again it wouldn't be for the issue of what the 1977 decision is supposed to be called.
Either way my CUE is clear and it is undebatable that I was screwed back in 1977, be that whether they call the decision a final or an open decision.
It is a road I am on and I won't see the turns or obstacles until I arrive. The CUE was submitted yesterday. I have an appointment next week with Senator Barack Obama. I am sure he will easily see what rubbish this is. I am sure he will be appalled at this and hopefully do something quickly. Obama is not one to leave an issue in suspense, he wants everything accomplished the same week he asked the question or raised the issue.
When he sees that I have been playing the game for two years now over this error and essentially the same information a "claim of CUE" was also on the claim I submitted dated 11 July, 2007. He will see the rating decision this Jan 2007 stating "Skull loss and earlier effective date" deferred. Then he will see this CUE with the 21 Feb 2007 rating decision, the clear error of the rating percentage and the effective date of 11 July, 2007 with no more mention of earlier effective date. He contacted the VA Secretary last time in late Dec 2006 and the actual rating decision was given to me in Jan 2007, but was done on the 28th of Dec, 2006. From the time I gave my claim information to Obama until the Tiger Team rating decision was about a week and that included the Christmas Holidays.
What about the retor pay? Am I correct in if they grant the CUE and also award 50% skull loss, will they add it to the previous 10% compensation for a combined rating of 60%? And then they will deduct the previous payments received when I was 10%?
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Carlie,
Again I did not file a CUE against the decision dated 21 Feb, 2007. I filed a CUE against the rating decision dated 25 April, 1977, because the same evidence that granted service connection and an award for skull loss in the 21 Feb, 2007 decision was the exact same evidence that was before the adjudicator at the time of the 25 April, 1977 rating decision that AWARDED S/C for PCS residuals etc under DC 8045-9304 and rated it at 10%.
Don't be cornfused! A RATING DECISION and CLAIM FOR DISABILITY COMPENSATION are two different things. The rating decision of 25 April, 1977 is final, there was an award. The claim for disability compensation dated 15 Nov 1976 is STILL OPEN.
Rating Decision letter and the claim for disability compensation are two entirely different animals. I don't think claims for disabilitity are considered final, just the rating decisions. I never contended or ever stated that the 21 Feb, 2007 rating decision was final at all, after all I just got it at the end of last month.
Please read the draft CUE attachment again. In the very first sentence it says "Failure of RO to apply 38CFR4.71a, DC 5296 for granting service connection for skull loss, 4.5cm x 4.5cm (3.133 sq. in.(20.25 sq. cm.) in rating decision dated 25 April, 1977."
I have not filed a CUE against the 21 Feb, 2007 decision rating. I did file a NOD rebutting the 30% rating evaluation and cited DC 5296 along with their math error and proved to them the rating should be 50%.
The 21 Feb 2007 rating decision granting service connecting the skull loss, not the rating, is the proof that I should have been granted it in the flawed 25 April, 1977 rating decision.
By the way I have a question as far as calculating retro. In the event the VA does grant EED and skull loss of 50%, will they add the 50% to the 10% awarded for PCS in the 25 April, 1977 rating decision for a combined total of 60%?
And then will they deduct all the 30+ years for payments received monthly at the 10% dollar amount?
I feel that is the way they should work it. I should get 30+ years of retro of combined total of 60%, minus payments received.
If so, this would be a heck of alot of cash. I can't even imagine how much it would be........Berta!!!!!! Where are you???????
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Carlie,
IF the adjudicator at the time of the 25 April, 1977 rating decision had not mentioned in the narrative "Neurological examination was to a large extent normal, although the outlines of the skull defect were palpated in the left parietal area". It would have been as you say.
However with that statement in the rating decision, it is evident the adjudicator made a final decision even though there was no service connection awared for skull loss at that time.
The skull loss cannot be an open claim now, because I already have S/C of skull loss as of 21 Feb, 2007.
Why would I claim S/C for skull loss again? When two claims are pending for the same disability such as skull loss and one of them is granted, the previous 1977 open claim is final since the 21 Feb 2007 provided an effective date of 11 July, 2005 that is not final until 1 year from award date.
The issue of service connection for skull loss is not the issue here, I have that.
The CUE is because they should have S/Ced skull loss and provided a rating of some kind in 1977 because the same exact medical evidence (Military Medical Records) use to grant the Feb 2007 skull loss was in front of the rater in 1977. If I was still not service connected for skull loss to date, then I believe the 1977 claim is entirely an open claim for service connection of skull loss.
That's the way I see it anyway. I was going to put open claim and not use unappealed final claim, but I did and then used a sentence to explain why I could not file an appeal at the time, because of the technicality that the rating officer did not provided any decision for S/C grant of skull loss.
If I had put open claim, then they would have technically said it was a final claim. So if you read the thing again, you will see I covered it both ways in the brief, and also referenced 38CFR3.400 as definition of an unadjudicated claim is determined as an open claim. I am trying to cover both sides of the coin.
Service Connection of skull loss, right or wrong rating, has since been adjudicated and provided for in the 21 Feb 2007 rating decision.
So "Has the S/C for skull loss been adjudicated?" Yes
And "Was the S/C for skull loss adjudicated in the 1977 rating decision?" Yes
And "Was a grant or denial for S/C of skull loss provided for in the 1977 rating decision?" No
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OK Carlie,
I am not CUEing the 21 Feb 2007 rating decision at all. I am CUEing the 25 April 1977 rating decision.
The Feb 2007 granted service connection for skull loss, but errored in the evaluation in assigning 30%. I have filed a NOD to the Feb 2007 decision showing them the math error and that the size of skull loss that they service connected me for as bases for decision exceeds the minimum sizes for the assignment of 50% by almost thrice.
The Feb 2007 is in the CUE to prove that the service connected is granted by that rating decision and was based on the same military medical evidence that granted this service connection was before the adjudicator in the 25 April 1977 rating decision.
The 25 April 1977 rating decision did award service connection for PCS residuals with an evaluation of 10% under DCs 8045-9304. There were no denials of anykind, there were no other awards. Since there was an award and I did not appeal, the 25 April 1977 became a final decision, even though there was never technically a decision for the claimed disability of skull loss.
So this brings me to Terry Higgins question:
How would the new court ruling wherein judge law says a denial on one of the vets claims is a denial on all vets claims? IF the court applys that logic to this case. IF the VA ruled on any of his issues, They could slap that ruling to this case.I don't think they would be able to do that in my case Terry. First there is no denial, just an award. I have asked this question many times on this board and to date I have not received an answer. Everyone focuses on the "If one is denied, all are denied."
I did not have any denials in the rating decision, just the award of PCS residuals. So, on the flip side of the coin it should be in my case "If one is granted, all are granted". I would have had to have a denial Terry to fall into the category of "If one is denied, all are denied."
So what about if you only have two disabilities claimed and one is granted, but there is no mention at all of what is happening with the other one........and it goes on for 30+ years.
What about it people.........If there are only two is it "If one is granted and there is no denial of the second one, should it not be that if one is granted, all are granted?
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Carlie,
I believe Vike is absolutely correct. Man Vike, "By George I think, you've got it".
The ED the VA provided for the Feb 21, 2007 granting service connection for skull loss is 11 July 2005, the date I filed and I requested EED at that time contingent on the grant of S/C for skull loss.
Since I now am S/C for skull loss in 2007, the old 25 April 1977 decision was still open and pending until 21 Feb, 2007. The recent grant of S/C for skull loss makes the prior 25 April 1977 rating decision a FINAL decision.
What I am CUEing is the period from grant of the 10% for PCS residual EED 28 Nov 1976 to 11 July, 2005, the period of which no decision was provided for in the claim for skull loss. Therefore that 1977 decision is final.
The CUE could not manifest itself until service connection for skull loss was granted.
I realize I have a CUE also for the 50% rating but as you can see, I had already submitted a NOD to the 21 Feb 2007 decision explaining the mathematical error using the same evidence used to service connect the skull loss and that clearly 50% is warranted.
I figure if in the CUE the look at the DC 5296 and the rating decision granting service connection they will also see that I should be getting undebatably 50% due to math error in the 21 Feb 2007 decision that granted S/C for skull loss and assigned a 30% evaluation is grossly erroneous. The size of my skull loss is almost three times that required for a 50% rating.
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Carlie,
I did not have any denials at all in my claim, the diagnostic codes, I listed those in the CUE letter. For the April 25th, 1977 rating decision, it also shows the RO granted S/C for Post concussion residuals, etc and assigned DCs 8045 - 9304 just like that.
For the 21 February, 2007 rating decision granting S/C for skull loss, the DC is 5296, and assigned a rating of 30%.
Again:
DC 5296 is Skull Loss (rate separately for intracranial complications)
DC 8045 is Brain Disease Due to Trauma
DC 9304 is Dementia Due to Head Trauma (This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.)
I haven't mailed it yet, let me know the deal Carlie, I'm waiting on you.
My C-file is not at my VARO as of yet. It still shows it to be at VARO Cleveland, OH. My file is in transit back to my VARO. I have two copies of my C-file prior to the Jan and Feb of 2007 rating decisions. On the new rating decisions I just received, there are no diagnostic codes. I'm also wondering, since they combined the PTSD (I assume DC 9411) with the Post Concussion Residuals DCs 8045 - 9304. Funny, the DCs 8045 -9304 are not mental problems but are listed in the cognitive disorder category all due to physical head trauma. DC 9411, PTSD, is listed under the Anxiety Disorders. What in the heck does DC 9411 have to do with 8045 -9304?
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So Terry,
You never did say where I should mail the CUE claim to. Who do I address it to?
Would it help if I also added "The duty to assist laws do not apply in this case and therefore cannot be used as for argument by the veterans service organization AMVETS on behalf of the veteran."?
Again do I send it to just VARO and hope for the best or do I have to put TO: BVA, THRU: VARO?
Also again Terry, What reg or where is it that says we can file are CUEs directly to the BVA and bypassing the VARO?
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OK, I put "THIS IS NOT A MOTION FOR RECONSIDERATION" on top of CLEAR AND UNMISTAKABLE ERROR. I have attached the updated, hopefully final draft, for sumbission of CUE. Please look at this because I want to mail it out to the right place somewhere, to be determined upon you guys response.
Terry; Are you saying that even though I have never appealed to the VARO, BVA, CAVC before at all, that the claim of CUE should still bypass the VARO? I have read BVA decisions where CUE claims were remanded back to the RO because the claim or appeal did not first go through the RO before going to the BVA.
Keep in mind,
1. There was never a denial of claim service connection of skull loss in rating decision by VARO St. Louis, MO in the April 25, 1977 decision.
2. Service connection was not granted either in the decision rating April 25, 1977.
3. Direct Service connection for skull loss was granted 21 Feb 2007 by VARO Cleveland, OH (Tiger team) with effective date of 11 July, 2005. Using the same evidence that was before the VARO in the April 25, 1977 decision.
So, who do I address this CUE to? Do I state somewhere in the CUE Claim when I send it to my local VARO in Chicago "If the grant of this CUE is not within the VARO jurisdiction, forward to Board of Veteran's Appeals?, Appeals Management Center? or what.
So please give me the address and what to put on it if I am not to send it as is to my VARO.
Is there also something in writing that states that VARO's have no jurisdiction to grant CUE?
I am confused as to where to send it to still and how to go about getting it to the BVA via the VARO.
Do I put a cover letter of some kind on it stating where it should go directly if the VARO does not have jurisdicition?
I need help, I want to get this in the mail tomorrow if possible.
Thanks Berta, John, Terry, and Jangrin.
Again, please read it, I have not dealt with BVA or CAVC nor the VARO on this yet.
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Berta,
Again please. What are the three prongs of CUE such as "Manifested altered outcome", and what are the other two?
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John,
The draft CUE claim that I have presented here is my initial appeal for anything. There are no previous appeals at all.. The 1977 decision was unappealed. After all, how can you appeal a decision of service connection for the skull loss disability if there never was a decision provided at all one way or the other? You can't appeal unless you received a denial for service connection of skull loss, right?
This is my first and initial appeal and the CUE was made by VARO StL, in April of 1977.
Berta:
I can't locate the "Bell v. Derwinski" decision. I have located a bunch of other cases that cited the "Bell v. Derwinski", but just that. No explaination as to what that decision says. I have searched the BVA and USCOVA sites and entered Bell v. Derwinski in the search description.
Where can I retreive a copy that 1992 decision? I will need it as an attachment since I am listing it in the letter.
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Thanks a lot!
I have a few questions and a reply for John.
Berta question?:
"essentially the same evidence granting service connection in rating dated 21 February, 2007, was before the adjudicator at the time of the 25 April, 1977 rating decision of which no decision for the issue of skull loss was provided for in that rating decision. Veteran will continue to appeal until EED of 28 November, 1976 is granted."That statement will circumvent any attempt the VA could make to try to deny under Constructive Notice of Bell V Derwinski-limiting date July 21,1992.
Where do I insert the Bell v. Derwinski-limiting date of July 21, 1992 does not apply? Right under the paragraph in the sentence or as a separate paragraph? Is there an official cite that must be written exactly the way it is cited in the case other than just Bell v. Derwinski....etc?
John: The CUE was commited by VARO St. Louis, MO specifically. I am no longer in that VARO's jurisdiction. My current VARO is Chicago, IL.
Do I submit the CUE directly to St. Louis or send it to my current jurisdiction VARO in Chicago? I cited in the CUE letter that the CUE was commited by VARO St. Louis, MO in their rating decision April, 1977. Are you saying if I submit the CUE claim to VARO in Chicago, my current VARO jurisdiciton, that it will not count and be ignored?
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Correction ArmyVV,
Axis I, IV, and V are the most important. Axis IV pertains to the IU, industrial and social meaning employable or not too!
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Here you go Carlie, Copy of original claim for skull defect, 4.5cm x 4.5cm dated 15 Nov 1976. For some reason the scanner keeps flipping the second page to sideways, but it does show the date in the upper left corner. I do send the attachments with the CUE, correct? I have circled and put "point to the applicable sentences and paragraphs.
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I have a draft of a CUE letter I intend to submit. I wanted to check with the pro's on CUE such as Berta and others here on hadit. Is this format good enough once I put my name, VA file number and sign it? It is about a page and a half, double spaced etc. It shows the reg they broke, how it would manifestly have changed the outcome, how the veteran is harmed, and remedy sought.
Please take a look at it fellow hadit members, I may be reading yours someday.
Those with experience with CUE, is this good enough to win?
Thanks in advance. P.S. I will be gone for a few days, be back Saturday.
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Having said this, if your IU is aproved, then just this error with the skull loss is pretty much a moot point anyways, beacause it would warrant an additional 10% and wouldn't bring any additional benefit such as SMC ect...
The difference between the 30% and 50% skull loss rating will not bring much benefit if IU is approved as far as total combined rating from 70% to 80% is correct.
BUT, the 50% skull loss over 30% makes a great deal of difference when it comes to over 30 years of back pay or an earlier effective date for skull loss back to 28 Nov 1976. I'm certain it would be in the thousands of dollars.
The EED, plus the 50% skull loss would give me two single disabilities greater than 40% and a combined total of 80%, and if IU is not approved there is over a $200 per month difference.
I will not let the error on the 50% skull loss go moot regardless because of the pending claim for EED, if still in the deferred mode or if not it is covered in this NOD.
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Thanks six,
I decided I wanted to keep it short with bullets and pointing to specifics in the decision and evidence used. Since the error is math, it doesn't matter to me and I dare not speculate how they made the error, that is on them. When it is numbers and figures I just state the correct measurement and calculation result. Figures don't lie and are undisputable, the fact is my calculation is correct, that is all that matters. And as far as the EED, there is a reg, the CFR that entitles me to the EED, so I just put that in front of them. The shorter the NOD and directly to the point, two pages or less, and maybe they will look at it. I felt no use in pointing fingers, it serves no useful purpose so instead of stating they errored, I simply state I disagree with their decision and this is why period, provide the facts, and present the correct decision as I see it.
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John,
I don't know why the IU was deferred. It said in the decision awarding 60% combined in Jan 07 just deferred pending additional information and that is all. That same decision also saidservice connection for Skull loss and entitlement to earlier effective date is deferred pending VA review examination. Every disability I have is service connected and I have no NSC disabilties.
Just got the skull loss rating of 30% that should have been easily 50% with no mention about the earlier effective date at all or deferred IU. This decision awarded service connection for the skull loss using essentially the same evidence for the skull loss claimed in Nov 1976 that was never adjudicated. This gives me a combined rating of 70% as of 21 Feb 2007 with Brain Trauma with PTSD disability being 50%. They have a IMO Psychiatrist MD letter stating I am unemployable and the VA neuropsychologist's report that states when it comes to employment and work environment he would severely challenged.
And then there is the C&P examiner that spent all of about 10 or 15 minutes to state "I must say he was able to maintain steady employment with the government for a good number of years."
Your guess is as good as anybody's. I guess the reason they deferred the IU was in Jan 07, I only had a combined total of 60% with one disability rated at 50%.
After what they did with the skull loss rating, combining the PTSD with the Post Concussion Residuals, and then just ignoring my many requests for earlier effective date for skull loss, it would not surprise me if they turn me down for IU too!
I just read a COVA case where COVA agreed with the BVA and RO and denied this vet IU. He is comined total of 80%, 50% PTSD, Brain Trauma (GSW), Skull Loss, blind in one eye, limps and must use a can. It was verified he is in severe pain a lot of the time. It also said he only had a 4th grade education and the VA shrink said he has the mind of an 7 or 8 year old. He did odd jobs when he could work as a handy man, simple stuff and that is it. He had not been able to work most of the time.
Who would have thought. COVA denied the IU too stating that his main disability was his limited education and that he does not work because he had not sought work and that he could find employment as a janitor or other industrial type job.
"It's like a box of chocolates, you never know what you're going to get"
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Hey Vike,
I know what you mean about being confused with this metric and US measurements. I don't understand why there isn't one measurement standard for this VA stuff so everybody understands the same sheet of music. No I didn't file claim for strokes or seizures, the neurologists at the VA during my first annual neurololgy visit (I have another this coming May) wanted to see if there has been any evidence of S/S since 1976 to when I started enrollment in VA medical program. He stated do not rule out S/S and there is evidence of post traumatic encephalopathy (more probable than not) due to in service head trauma. I sent that to them a long time ago.
I submitted the NOD today. Please take a look and see if you can understand this. I cut it down to two short pages bullet style and pointing to specifics in the rating and evidence as it directed. I NODed the 30% skull loss rating and effective date of 11 July 2005. Please tell me if this NOD has a chance of winning. Can't believe I may have two to four more years of getting this resolved. Seems silly and a big waste of government resources that could be working claims and backlog for new claimants.
Is this a winner or no?
NOTICE OF DISAGREEMENT
5 March, 2007
Page one of two
Veteran: xxxxxxx x xxxxx
VA File Number: xxx xx xxxx
1. Disagreement with Rating Decision dated February 21, 2007.
a. Disagree with 30% rating for skull loss. 50% evaluation is warranted.
b. Disagree with effective date of 11 July, 2005 for service connection entitlement for skull loss. Effective date of entitlement is 28 November, 1976.
2. Skull Loss:
a. The skull loss area is 4.5cm x 4.5cm which is 20.25 square centimeters or 20.25 \2\. Conversion from U.S. measurement to metric 20.25 \2\ is 3.133 square inches or 3.133 in \2\.
b. 4.5 cm x 4.5 cm = 3.133 in. \2\ (20.25 cm \2\) and larger than a 50-cent piece and almost three times that required for a 50% evaluation.
c. The requirement for a 50% evaluation is 1.140 in \2\ (7.355 cm \2\)
d. Iowa City VAMC x-ray dated 27 February 2006 showed approximately 4.8cm, representing the diameter of the skull defect. 4.8 cm in square centimeters is 23.04 cm \2\ ( 3.568 in. \2\.
e. C.F.R. 38, Part 4, sec. 4.71a, DC 5296, Schedule of Ratings - -Musculoskeletal System – The Skull:
5296 Skull, loss of part of, both inner and outer tables:
With brain hernia............................................. 80
Without brain hernia:
Area larger than size of a 50-cent piece or 1.140 in \2\ 50
(7.355 cm \2\).............................................
(The skull loss area, both inner and outer table is 3.133 in \2\
20.25 cm \2\)
Area intermediate........................................... 30
Area smaller than the size of a 25-cent piece or 0.716 in 10
\2\ (4.619 cm \2\).........................................
Note: Rate separately for intracranial complications.
NOTICE OF DISAGREEMENT
5 March, 2007
continued page two of two
Veteran: xxxxxxxxx x xxxxx
VA File Number: xxx xx xxxx
3. Entitlement to earlier effective date:
a. Point to rating decision, page 2, “Service Connection of Skull Loss Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5 cm x 4.5 cm skull defect”.
b. The same factual predicate used as a basis for granting a rating for service connection of skull loss in the 21 February, 2007, rating decision was essentially before the adjudicators at the time of a 25 April, 1977, rating decision which granted service connection for post concussion syndrome with brain trauma, left temporal lobe contusion, chronic and assigned a 10 percent rating for this disability with effective date of 28 November, 1976.
Any reasonable review of the evidence before the adjudicators at the time of the April, 1977 rating decision would result in a 50 percent rating of skull loss, 4.5cm x 4.5cm.
c. Point to C.F.R. 38, Part 3, Sec 3.400 “Except as otherwise provided, the effective date of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final decision, or a claim for increase will be the date of receipt of the claim or the date the entitlement arose, whichever is later”.
d. Point to original claim and receipt of claim dated 15 November 1976 for Skull Defect, temporal parietal, Left. Size 4.5cm X 4.5cm. The issue of skull loss claim was not adjudicated.
e. Point to VA form 21-2507, Request for Physical Examination dated 22 November, 1976 block number 13 “Other disabilities for which examination is requested (Skull Defect 4.5cm x 4.5cm).
f. Point to C&P examination, January, 1977 “4 ½” x 4 ½ “ skull defect from x-ray.
g. Point to 25 April, 1977 rating decision.
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"Naturally the 4.8cm is larger due to the filing down of the 4.5cm x 4.5cm hole in my head all the way to the brain (so the craniotomy removed both inner and outer tables of my skull to the tune of 4.5cm x 4.5cm and then was tossed in the trash) so as to fit and smooth in the cranioplasty. But the fact is my actual bone skull is missing and gone and was replaced with an artificial material, not my skull"
This may be where the problem lies. If the actual visible hole has been somehow repaired regardless if it's with artificial material or some type of bone graph, the VA may be only able to compensate for the size after surgery. So, if after surgery you only have a remaining hole the size of less than 1.140 square inches, this may be the correct rating.
Whooooaaaaa!!!!! 4.8cm Vike is the diameter of the skull loss, that is why they compare everything for 50 percent evaluation to a circle hole comparable to a little larger than a 50 cent piece. They use the diameter of the circle for calculating and converting to square inches (square centimeters CM). Filing down the previous skull loss to allow for cranioplasty actually created a larger amount of skull loss by .3 cm, increasing the previous skull loss from 4.5cm diameter to 4.8cm diameter.
4.8 cm in square centimeters is 4.8cm x 4.8cm = 23.04 square centimeters and 3.568 square inches. Definitely larger than the 1.140 sq in (7.355 sq cm) and exceeds the 50 percen evaluation by over three times.
The service connection of skull loss basis for decision in the rating specifically states "Service connection for skull loss. "Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5cm x 4.5cm skull defect." Which is an area the size of 3.133 square inches (20.25 square centimeters) and almost three times larger than 1.140 sq in (7.355 sq cm).
The actual C&P for skull loss stated skull loss, 4.5cm x4.5cm. The medical report of the xray by the VA in 2006 was not a C&P exam. The xray was initiated by the VA neurologist to specifically see if I had any metal in my brain or skull prior to ordering MRI. He was afraid that if there was any metal in my head it could be fatal when putting my head in the MRI. The xray reported simply they noted a several skull defects in the xray with the largest area approx 4.8cm, surgical sutures, and surgical clip, old encelophomacia (old blood) from S/C TBI. They were not measuring or doing a specific xray to determine the size of the skull loss for compensation purposes. It was a brief report and short back to the neurologist. The MRI was looking for evidence of strokes and seizures where the neurologist stated to Not Rule Out some kind of strokes. And that is when he diagnosed me with post traumatic brain encephalopathy due to the TBI.
Either way this is definitely a calculation error and for a rating of only 30%, they had to think that that xray report (not specifically done to determine the size of skull loss, but in prep for MRI to look for strokes, seizures, abnormal vessels, nerves, etc. and had nothing to do with the skull loss) and must have mistook the 4.8cm in that report as being square centimeters, even though I and the medical community know that the 4.8cm represents the diameter, therefore square inches and square centimeters must be calculated by using the 4.8cm as a square root such as 4.8cm x 4.8cm to arrive at the square centimeters. That report does not state sq inches nor sq centimeters, just 4.8cm and from doctor to a doctor when it comes to skull loss it means diameter/circle. Afterall all the hole saws are round that remove the skull bone and so are the drills for burr holes.
It's not rocket science. However, how can that be when they used for service connection basis the 4.5cm x 4.5cm from my military records as the basis for granting skull loss service connection.
This definitely is a fluke and such a simple mathematical error and there has to be some way to get this corrected other than the whole two year NOD process and more paper and jamming up the appeals line with simple math errors. Figures don't lie and can be easily seen and absorbed by both parties.
If a NOD is the only way I can bring this error to their attention then I guess that is what I'll have to do, but it is something and the kind of error that is corrected in a flash, but a NOD takes about two years for them to look at the thing even.
The only thing I can figure is they did not use my service records as the basis for skull loss service connection as they stated in the rating decision, but took the 4.8cm from an xray not intended to measure for skull loss and not C&P exam and thought it was square centimeters in their own minds, determined the square root of 4.8cm to be 2.190 cm and then divided the 2.190 cm by 2.54 cm to arrive at 0.862. 0.862 in X 0.862 in = 0.743 square inches. Therefore 0.743 sq in (4.8 sq cm) is a 30 percent rating and falls into the intermediate. Someone thought in their own mind that the 4.8cm was square centimeters when in actuallity is DIAMETER.
I think this is what they had to have done and if so they lied about using the service records and the 4.5cm x 4.5cm as the basis for the award and used an xray that was not intended to measure both inner and outer tables of the skull loss specifically, it was to determine presence of stroke or seizure activity damage to the brain.. They did not state they used the xray as a basis. There are plenty of xrays at least 10 or 12 since my brain injury since 1972, all on file, and all have reported 4.5cm x 4.5cm skull defect.
What a bunch of beaucracy!!!!!
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I just found the C&P report for the skull loss and it isn't the one that says 4.8cm. The C&P states
"Had planned on cranioplasty for repair of 4.5cm x 4.5cm defect in May of 1972, but delayed due to abnormal EEG. Cranioplasty was done in July 1973 for the repair of the 4.5cm x 4.5cm defect. Hospital and Location: Great Lakes Naval Hospital."
It was the Head MRI that stated "2 views of the calvarium reveals multiple left calvarial defect. The largest which is within the posterior left calvarium and measures approximately 4.8 cm. There are metallic surgical clip and sutures seen adjacent to the large left occipital defect."
Naturally the 4.8cm is larger due to the filing down of the 4.5cm x 4.5cm hole in my head all the way to the brain (so the craniotomy removed both inner and outer tables of my skull to the tune of 4.5cm x 4.5cm and then was tossed in the trash) so as to fit and smooth in the cranioplasty. But the fact is my actual bone skull is missing and gone and was replaced with an artificial material, not my skull.
The rating decision flat out even contradicts itself and Duh!!!! Even stating as basis for service connection is the 4.5cm x 4.5cm skull loss repaired by cranioplasty based on my service records. Referenced the C&P and MRI reports too! (20.25 sq cm or 3.133 sq in) and then awarding 30% because it falls into the intermediate area. All service medical records verify 4.5cm x 4.5cm skull defect. So did the VA exam in 1977.
Then adding insult by stating "a higher evaluation in excess of 50 percent is not warranted unless there is evidence of skull loss without brain hernia over an area larger than that of a 50-cent piece or 1.140 sq. inches (7.355 sq. cm.)."
Again Duh!!!!! I met and exceeded the size required for a 50 percent rating by almost three times even in their own writing in their decision letter.
So since they just flat out contradict themselves right in the rating in the service connection basis for service connection being 4.5cm x 4.5cm skull loss contradicts their 30% rating, but justifies their written requirement for a 50 percent rating.
I know this was the Tiger Team, working directly under the Secretary of Veterans Affairs and they are supposed to be the cream of the crop and the special forces of VA compensation if you will.
I really question their competence and since they are the best as far as the VA goes and consists of all highly competent managers only all I can say.................
IS THE REST OF YOU BETTER LOOK OUT!!!!!!!!
Isn't their a simpler way of resolving this without two years of NOD, appeals, etc for an undebatable clear mistake such as this? I am tossing around going to see Senator Obama and when I leave his office it will be off to the local new media where I will give them all copies of this fiasco and the 33 year entitlement for skull loss that is still pending over two years too. That should get some good media with a vet just now getting service connected for skull loss, clearly lowballed, after 33 years of waiting and the VA only wants to pay back to 11 July 05........The date the veteran followed up on a 33 year old unajudicated open claim for skull loss. Was awarded 30% when the vet clearly is entitled to 50% in the contradictory rating decision letter.
They have to really be smoking something powerful up there in that Tiger Team Office in Cleveland.
Maybe Gates can rub off on the VA Secretary and loan him his axe. When they start firing the senior leaders, they will get the idea and the claims will be scrutinized and handled better than this what I received.
I also am wonder if the 30% was a typo error and should have been 50% since the service connection for the 4.5cm and 4.5cm skull loss and the 50% evaluation is listed, but then again they wouldn't have listed the 30% evaluation criteria.
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Vike17,
Thanks for the response and insight. As far as the skull loss C&P exam, the lady Dr just took the most recent VA xray from Feb 07 and reviewed all the MEB and SMRs. She was nice but there was some kind of boiler plate C&P with drop down boxes where you had to select choices or was allowed only to put digits in for size of loss and it did not have a feature where she could put sq in or sq cm. I even was frustrated with it as she was. It only allowed her to put in 4.8 cm, the software would not allow her to enter anything such as 4.5cm x4.5cm or even the recent 4.8 cm x 4.8cm.
However since the VA in the rating decision did cite under reasons for decision service connection for skull loss 4.5 cm x 4.5 cm skull defect, and all my military medical records, tons of them, plus a few of my statements in support of claim even pointed out the size in US to metric conversion and in sq in and sq cm. I just don't get this one.
Since the Cleveland RO is sending my whole file back to Chicago, I assume it will be about a month before it is archived or on hand there anyway.
What about filing for reconsideration due to clear and unmistakable error in failing to correctly apply the schedule for rating disabilitites under DC 5296 since my loss is almost three times the 50% requirement of 1.140 sq in?
I drafted a letter requesting reconsideration. Would they not use this as additional information since I headed it Statement in Support of Claim? Here is my draft:
VA FILE CSS xxx xx xxxx
STATEMENT IN SUPPORT OF CLAIM
March 5, 2007
Department of Veterans Affairs
2122 W. Taylor St.
Chicago, IL 60612
Subject: Reconsideration of 30% rating for skull loss due to “clear and unmistakable error†in application of C.F.R. 38, Part 4, sec. 4.71a, DC 5296, Schedule of Ratings - - Musculoskeletal System – The Skull.
Reference: Rating Decision dated February 21, 2007 from DOVA Regional Office
1240 East Ninth Street, Cleveland, OH 44199
Enclosure: Rating Decision dated February 21, 2007
Dear VA,
Reconsideration is requested for the referenced and enclosed rating decision of February 21, 2007 from VARO Tiger Team, Cleveland, OH. The reconsideration is requested due to clear and unmistakable error in the assignment of 30% for service connected skull loss when according to C.F.R. 38, Part 4, sec. 4.71a, DC 5296 a 50% rating was warranted.
The area of my skull loss is 4.5cm x 4.5cm and pointing to the rating decision under “Reasons for Decision†bottom of page 2, under service connection for skull loss, and states “Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5cm x 4.5cm skull defect.â€
The U.S. to Metric conversion tables shows one inch conversion to be 2.54 centimeters. My skull loss in square centimeters is 20.25 cm \2\ and converted to square inches is 1.77 in x 1.77 in resulting in 3.13 square inches. This is almost three times the 1.140 \2\, 7.355 \2\ size warranted for a rating of 50%.
Any reasonable review of the evidence before the adjudicators at the time of the February 21, 2007 rating decision would result in the conclusion that a 50 percent rating for skull loss was warranted on the basis of such evidence.
Pages 1 of 2
VA FILE CSS XXX XX XXXX
STATEMENT IN SUPPORT OF CLAIM
XXXXXXX X.
XXXXXXXXX
March 5, 2007
(Continued)
Sec. 4.71a Schedule of ratings--musculoskeletal system.
The Skull
------------------------------------------------------------------------
Rating
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5296 Skull, loss of part of, both inner and outer tables:
With brain hernia............................................. 80
Without brain hernia:
Area larger than size of a 50-cent piece or 1.140 in \2\ 50
(7.355 cm \2\).............................................
(My skull loss area, both inner and outer table are 3.133 in \2\
20.25 cm \2\)
Area intermediate........................................... 30
Area smaller than the size of a 25-cent piece or 0.716 in 10
\2\ (4.619 cm \2\).........................................
Note: Rate separately for intracranial complications.
The February 21, 2007 rating decision clearly is in conflict with CFR 38, part 4, sec. 4.71a, The skull, DC 5296 and should have assigned the warranted 50% rating since my skull loss clearly exceeds area larger than a 50-cent piece, and almost three times the 1.140 in. \2\ (7.355 cm \2\.
The February 21, 2007 rating decision is clearly product of CUE. 50% rating for skull loss is warranted and requested.
Sincerely,
XXXXXXX X. XXXXX
Pages 2 of 2
Just as an after thought if your IU isn't approved, a 50% rating for the skull loss would only add an aditional 10% to your over all rating (50% + 50% + 10% + 10% = 80%).And if I don't get the IU, that extra 10 % from 70 to 80% is still an extra $200+ a month and I need it! I don't want the VA keeping it when I am entitled to it period.
This Website View Of Pages Changed For The Worse T-bird
in VA Disability Claims Research
Posted
T-Bird,
Please change the website viewing of the pages back to "Portrait" view. Somehow yesterday everything changed to Landscape and to view these pages you have to scroll all the way across to read. It is aggravating, they should be set back to the way they were to fit screen. I hate this, please change it back.