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RockyA1911
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Posts posted by RockyA1911
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I know this is JUST a BVA decision, but do they not consider the legal statements pertaining to the regs, where they point to the reg and violation when it comes to mixing and matching different diagnostic codes?
Here is the excerpt I am talking about:
BVA9414656
Upon review of the evidence, the Board finds that the veteran
should receive separate disability ratings for service-connected
PTSD and his service-connected residuals of concussion,
identified as encephalopathy and dementia. While the PTSD and
the concussion (physical trauma to the brain) may have resulted
from the same incident, i.e., a mortar explosion, each is a
distinct entity which warrants a separate disability rating under
different Diagnostic Codes in the VA schedule for rating
disabilities. See 38 C.F.R. Part 4 (1993). In this regard, the
Board notes that PTSD is rated under Diagnostic Code 9411, while
the residuals of physical trauma to the brain, in this case, may
properly be rated under Diagnostic Codes 8045 or 9304.
I don't for the life of me understand just because it is illegal or wrong to combine DC 9411 and DCs 8045-9304 together for evaluation for one veteran, but the same rule doesn't apply also to myself or any other veteran that the VA has combined their PTSD with Post Concussion Residuals.
How could this be used as a defense to get the VA to provide separate ratings.
It makes a real difference if a combined evaluation is 50%, but is supposed to be two separate evaluations at 50% each, i.e. 50% combined versus 75% rounded to 80% for correctly separating the two.
Am I wrong here?
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John,
What are you smoking buddy? I am not the vet that had the tinnitus denied. I merely posted my recent VA decision awarding me tinnitus based on combat award and audiologist exam.
The Vet Shoot is the original poster and is the one that needs the advise because he is the one they denied tinnitus, not me.
Rocky1911
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"I have even been denied 10% for having tinnitis and I was blown off an APC and unconsious for 2 weeks with a head injury. My ears ring all the time"
Generally, its hard to get service-connection just for tinnitus alone, it normally is associated or "secondary" to hearing loss. Do you have hearing loss, and if so, do you recall what your ETS physical said about it. If your ETS physical is silent for hearring loss, then you'll need a current diagnosis and a nexus opinion from an Audiologist stating that "it's at least as likely as not that the veteran's current hearing loss is due to the lound noise exposure he suffered in combat in Vietnam," or something to that effect. The doc will also need to give his rational as to why he came to this conclusion
My recent decision awarding 10% for recurrent tinnitus states that my DD-214 shows receipt of Combat Action Ribbon, therefore tinnitus is conceded due to military noises.
Yes there is a C&P audioalogist exam that also states "Onset more likely than not caused by military noises."
They listed it as secondary to Post Concussion Syndrome with PTSD of all things.
I do not have hearing loss.
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As of today I was turned down for any increase due to the fact "Unfortunately those GAF scores were provided without a complete mental status evaluation which is a requirement for evaluative purposes. You were afforded a VA examination which was conducted on 8-06 and an AXIS I diagnosis of PTSD was provided. An AXIS V diagnosis GAF score of 40 was provided for your PTSD however, this score is not consistent with your actual performance in the Mental Status portion of the examination and is therefore not considered as valid data".
It is a polite way of saying you are faking or malingering as far as the GAF score. In otherwords, the Mental Status portion of the MMPI 2 and other batteries of tests you took, based on your answers and actions are not compatible with the GAF score of 40, therefore is considered invalid. They have a method of cross checking all of those batteries of tests against each other and the score of each can determine if the veteran is malingering.
Did they have you take the MMPI-2 twice to be sure. Normally when they get a read out of the whole Mental Status and it is in conflict with the GAF that shows invalid, they have you retake the tests again to be certain that it is faking/malingering or the second one compared to the first one rules out malingering/faking and therefore both combined represents a picture and confirms there is or is not faking when it comes to the reported GAF score.
Not saying you are, just explaining what that paragraph meant. You would have to retake the entire battery of tests again along with current GAF so they can look at the numbers and it will tell them if your GAF score is representative of the Mental Status portion or it is non representative of the mental status portion which is faking the GAF.
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Carlie,
No! I never did claim headaches period and there is no mention of that in any of my C&Ps exams, or specialists consults recently at the VAMC. It is beyond me. I am going to ask they withdraw that because I don't want to have a C&P exam and go through tests for headaches that I never claimed to beging with. Yeah, I have them sporadically but not continuous enough to warrant any compensation according to the CFR 38.
Vike17,
OK, I get it now. I'll just sit on everything and wait and see what the Tiger Team does with the skull loss and IU.
It is still nerving that the Tiger Team, a special unit, how the combined the PTSD with the Post Concussion Syndrome that clearly must be separate evaluations. They had to know that. I feel if they can screw that up, just like Berta said I'd be very skeptical of them and wonder if since they thought they could get away with combining and anxiety disorder (PTSD) with a PCS, how do I know they won't try and combine the skull loss with the PCS too! Even though the DC 5296 states will not be combined with intracranial complications.
I'm just going to take my pack off, relax, and forget about it for a few months. Thanks Vike
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Vike17,
The thing that bothers me about the 14 yr old boys emergency medical treatment record in May of 05 in Peoria, IL and not even being me or my medical evidence is I don't want the VA using that because this kids injury was definitely not a military or service connected injury and was due to what I would call willful misconduct. The VA stated they used my IMO Psychiatrist diagnosis and this kids emergency medical treatment records as evidence for the PTSD. And I do believe it is prohibited and fraudulent to submit another persons medical records in support of another veterans disability claim for compensation. Isn't it.
Do you feel it would hold up the deferred skull rating by calling the Tiger Team at their given extension and tell them they need to remove that and that is not my evidence or record? I don't want to be charged with fraud.
Make sense!
Since I can send them additional supporting information such as BVA rulings that were not in their possession specifically a preponderence of BVA decisions and orders that state it is undebatable and clear and unmistakeable error that the RO did not service connect skull loss and skull loss requires a separate evaluation. Wouldn't this only strengthen my case? And possibly avoid another 2 years by having to file a NOD? If I provide separate additional statements in support of claim form and attaching the BVA decisions. Would that not at least help in the case of a BVA appeal, since they would have to show the long list of BVA decisions that would be listed as evidence of record.
Same with the separation of PTSD and Post Concussion Syndrome. (BVA's)
Same with the separation of PTSD and Encephalopathy (BVA's)
Same with the separation of Post Concusion Syndrome and Encephalopathy (BVA's)
Same with the separate service connection and evaluation for skull loss, separate from skull loss and cranioplasty (BVA's)
I looked at the copy of the Checklist for Compensation Development from the C-File and I did not claim headaches at all, headaches were never discussed in any of my recent VA C&Ps or consults, treatment records, etc. So I think this has something to do with the 14 yr old boy thing for certain and I certainly don't want a C&P exam for headaches that I did not claim and no reports have mentioned.
Can't I just call the number and tell them this and tell them to withdraw their claim for headaches? Would this also not be fraud to let this continue without notifying them?
Since the Skull loss is still pending, wouldn't it be more expedient just to send them some more additional information in support of the claims above?
Or are you saying to just let the whole thing ride, and if I get a decision within a few months on the skull loss and unemployability, I can still submit the additional information without having to file a NOD or Reconsideration?
I just always felt it was best to lay all the cards on the table. Am I wrong here and if I sent more or wanted that kids name off my records it would hurt me and delay my claim?
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It says in the letter "We are pleased to inform you that the Secretary's Tiger Team has granted your claim for benefits." "Your records are being retained at our local Regional Office, You should contact this office if you have any questions at 1-888-556-0933 ext. xxxx" "VA uses a schedule for evaluating disabilities that is published as Title 38 Code of Federal Regulations, Part 4." "If you have any information or evidence that you have previously told us about or given to us, and that information or evidence concerns the level of your disability or when it began, please tell us or give us that evidence now. You have a full year to submit additional evidence in support of your claim."
Maybe I can just call the number and ext of the Tiger Team and straighten some of these things out.
There are several Typo errors such as previously established service connection Nov 28, 1978 (it is not 1978, it is 1976) They did that one twice.
Also back in July of 05 I received a copy of my C-File. In it was a medical record of Emergency Treatment records from Methodist Medical Center of Peoria, IL dated May 28, 2005. I had never been to the Medical Center in Peoria, IL and when I looked at it twice it wasn't even my name. Reading it further it was a 14 year old boy (dependent of veteran I assume) detailing emergency treatment for shortness of breath and forehead hematoma. This kid even had an entirely different name. I called the 800# and informed them I had another vets records and he told me to throw it away and they would remove it from my file. In good conscience I couldn't do that to another vet, so I mailed the medical report to the home address in listed in the report since the incident was only a couple of months old with a note that it was erroneously in my C-File.
Guess what? They have listed it as evidence in the decision for the increase for residuals, post concussion syndrome/brain trauma, left temporal lobe contusion and post-traumatic stress disorder, (claimed as post traumatic-stress disorder, memory loss) currently evaluated as 10 percent disabling.
Also, under DC 5296 for skull loss it specifically has a note at the bottom of the schedule stating "Rated separately from intracranial complications:
Sec. 4.71a Schedule of ratings--musculoskeletal system.
The Skull
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
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 4.5cm x 4.5 cm verified skull loss is “3.13 in \2\ (20.25cm \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.
http://www.va.gov/vetapp98/files1/9809718.txt BVA decision to rate skull loss separately and stated RO was in violation of anti-pyramiding provisions and remanded.
http://www.va.gov/vetapp96/files2/9618053.txt BVA decision entitlement to skull loss separate from cranioplasty. Ordered service connection for skull loss.
http://www.va.gov/vetapp06/files3/0610575.txt BVA decision ordered skull loss as separate evaluation and earlier effective date to 28 December 1968. Skull loss in this case was 3.3cm x 3.3cm.
PTSD must be rated separately from post concussion syndrome according to this BVA case:
BVA9414656
DOCKET NO. 92-22 251
Entitlement to a separate rating for post-traumatic stress
disorder (PTSD) with post-traumatic encephalopathy and concussion
residuals, now rated 30 percent disabling.
Upon review of the evidence, the Board finds that the veteran
should receive separate disability ratings for service-connected
PTSD and his service-connected residuals of concussion,
identified as encephalopathy and dementia. While the PTSD and
the concussion (physical trauma to the brain) may have resulted
from the same incident, i.e., a mortar explosion, each is a
distinct entity which warrants a separate disability rating under
different Diagnostic Codes in the VA schedule for rating
disabilities. See 38 C.F.R. Part 4 (1993). In this regard, the
Board notes that PTSD is rated under Diagnostic Code 9411, while
the residuals of physical trauma to the brain, in this case, may
properly be rated under Diagnostic Codes 8045 or 9304.
Vike17, I did do another exam for skull loss back in April of 06 along with a VA neuroligists consult along with more X-Rays, EEG, and MRI. The MRI x-rays measure it to be approx. 4.8cm x 4.8cm. C&P reported 4.5cm x 4.5cm again. There is no more examinations required regardless how old they are. It is as simple as this: The in service crainiotomy resulted in complete removal of skull area diameter of 4.5cm x 4.5cm. A in service crainoplasty (plastic plate) was done to close the open skull. The in service operative and post operative reports will never change and the skull loss is permanent. There a 3 Naval Medical Boards alone with tons of test reports and images over the years.
I don't think they mean a VA examination, they are saying just the opposite (VA review examination) for the skull loss.
They actually say pending VA examination for the deferred headaches that I never claimed. What's up with that.....?the headaches must be that 14 yr old kids that was treated for shortness of breath and frontal hematoma that was mistakenly in my file.
So should I call the Tiger Team number and inform them of all this, prepare statements in support of claim for separate rating for PTSD and Skull Loss separate rating to send as additional information and also demand they remove that 14 yr old kid's emergency medical treatment records from my C-File and expunge from all correspondence, evidence, and decision documents that pertain to my claims.
Really need help right now on how to handle this. They are saying in the letter this is not an appeal or NOD, that I can just contact them.
Funny thing though, they said they are retaining my file at the Cleveland RO but to send any additional information to my local RO (Chicago). I know I have brain damage but I'm trying to figure out why they wouldn't want it to go directly to where my claim and C-File is being retained.
Thanks all!
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I just received the letter from the VA in a white envelope.
Here is what they said pertaining to the skull loss, PTSD, and Unemployabiltiy claim.
Skull Loss
"The issues of service connection of skull loss and an earlier effective date for service connection of skull loss are deferred pending results of VA review examination."
Unemployability
"The issue of whether or not the veteran is entitled to Individual employability is deferred pending receipt of additional information."
PTSD
"As mentioned above, service connection of residuals of post concussion syndrome with brain trauma, left temporal contusion was previously established November 28, 1976, by Rating Decision dated April 25, 1977(rated at 10%). The evaluation of the same disability under various diagnosis is to be avoided. Disability injuries may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation; therefore, your two mental disabilities, residuals of post concussion syndrome with brain trauma/left temporal lobe contusion with post-traumatic stress disorder have been combined and are now shown as post concussion syndrome, brain trauma/left temporal lobe contusion with post-traumatic stress disorder and a 50 percent evaluation is assigned effective April 19, 2005."
I didn't think they could combine the PTSD into this because the stressor of PTSD was Vietnam service and they stated "Your DD-214 for the period of April 15, 1969 through November 27 1973, documents receipt of Combat Action Ribbon, therefore an in-service stressor is conceded."
The head injury happened in 1972 stateside while on duty and the post concussion residuals left temporal lobe contusion with brain trauma is the result of a physical injury and yes they mentioned the cognitive disorder and Memory loss in the increase due to that.
Can they do that? I have seen BVA decision making the VA separate the PTSD from head injury residuals.
So the total results are so far 60% combined:
50% - Post concussion syndrome/brain trauma, left temporal lobe contusion and post-traumatic stress disorder.
10% - Scar secondary to service- connected post concussion syndrome/brain trauma. left temporal lobe contusion (and post traumatic stress disorder).
10% - Recurrent Tinnitus
Skull loss - Deferred pending results of VA review examination.
Individual Empoyability - Deferred pending receipt of additional information.
Service connection of headaches - deferred pending results of VA review examination.
Chloracne - Denied
Barrett's Esophagus - Denied
So it looks like I they still owe me a decision for the Skull Loss and EED, and IU, and the headaches.
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Wow! I was the one that made the error by just converting inches into centimeters. The evaluation schedule is correct! Everything is to be converted from square inches to square centimeters. So figuring correctly I should have taken the square root of 1.140 inches (1.068) and then multiplied it by 2.54 (2.71 cm) and the result squared again which equals the 7.355 cm2. I know this comes out to be 7.349cm2 but I dropped the 13 plus extra digits to the right of the decimal. It correctly comes out to 7.355cm2. My BAD! Good thing I didn't sent the correction request out and I won't. So the schedule is correct!
I showed it to a electrical engineer and he took one look at the previous post and told me of the error I made in conversion and the schedule was right.
Still according to the rating schedule I should still receive the maximum without brain hernia of 50% with 4.5cm x 4.5cm skull loss both inner and outer tables.
Sec. 4.71a Schedule of ratings--musculoskeletal system.
The Skull
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
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 4.5cm x 4.5 cm verified skull loss is “3.13 in \2\ (20.25cm \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.
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OK, I drafted the details that I will send to both the House and Senate Chairmans for Veterans Affairs. And Vike I tried the Compensation and Pension place last year, they are the ones that told me I had to send request for correction of errors in Federal Regulations to the Government Printing Office. I'm going to send an info copy to my Senator Barrack Obama also.
I will also prepare a cover letter for this enclosure.
"
Under the provisions of Diagnostic Code 5296, loss of part of
the skull with brain hernia warrants an 80 percent
evaluation. A 50 percent evaluation is the highest rating
available when there is loss of part of the skull without
brain hernia. A 50 percent evaluation contemplates an area
larger than size of a 50-cent piece or 1.140 in2 (7.355
cm2). Intracranial complications are rated separately.
38 C.F.R. Part 4.
Sec. 4.71a Schedule of ratings--musculoskeletal system.
The Skull
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
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\).............................................
(correct to read “1.140 in \2\ (2.90 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\).........................................
(correct to read “ 0.716 in \2\ (1.82 cm \2\)”
Note: Rate separately for intracranial complications.
------------------------------------------------------------------------
http://a257.g.akamaitech.net/7/257/2422/12.../38cfr4.71a.htm
Effective March 10, 1976, the rating criteria contained in
Diagnostic Code 5296 of the VA's rating schedule were changed; this
resulted in the elimination of the requirement that for a 50 percent
evaluation the skull loss had to be greater than 2 square inches.
The result of the change effective March 10, 1976, was that the
sole requirement for granting a 50 percent evaluation for skull loss
Was that the area be larger that the size of a 50-cent piece or 1.140 inches \2\.
Cite Metric Conversion Table http://www.sciencemadesimple.com/length_conversion.php
1.0 inches is equal to 2.54 centimeters (Correct conversion equivalent)
50% Evaluation conversion error:
1.140 inches is equal to 2.90 centimeters (Correct conversion equivalent)
7.355 centimeters is equal to 2.90 inches (Correct conversion equivalent)
It appears the error occurred while converting 1.140 inches into metric equal to
2.90 centimeters. A human error then occurred by converting incorrectly 2.90 inches instead of correctly 2.90 centimeters and thus 2.90 inches became 7.355 centimeters (Huge error). The common denominator is 2.90. 2.90 centimeters being 1.140 inches and 2.90 inches being 7.355 centimeters.
10% Evaluation conversion error:
.0716 inches is equal to 1.82 centimeters (Correct Equivalent Conversion)
4.619 centimeters is equal to 1.82 inches (Correct Equivalent Conversion)
It appears the error occurred while converting .0716 inches into metric equal to
1.82 centimeters. A human error then occurred by converting incorrectly 1.82 inches instead of correctly 1.82 centimeters and thus 1.82 inches became 4.619 centimeters (Huge error). The common denominator is 1.82. 1.82 centimeters being .0716 inches and 1.82 inches being 4.619 centimeters.
The CFR 38, 4, 4.71a diagnostic code 5296 is gregarious and greatly impacts the VA adjudication of claims. This is because someone got confused and got inches mixed up with centimeters when calculating metric to US measurements and vice versa. It is undebatable as to how this error occurred.
As the current evaluation criteria stands it is definitely in conflict with the 1976 change eliminating the previous 50% evaluation criteria of 2 square inches to 1.140 inches. The centimeters listed currently even exceed the previous 2 square inches when accurately converted to inches as I have proven.
Remedy: Correct the evaluation measurements so the centimeters printed are actually equal to the US inches.
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Vike,
Question. If I sent them a recent 2006 BVA decision http://www.va.gov/vetapp06/files3/0610575.txt
CUE that awarded 50% for 3.3cm x 3.3cm and earlier effective date to Dec 1968 as new evidence in support of the skull loss claim? Would that be considered new evidence?
Is not an "undebatable" error in the CFR regulation a CUE? Especially as far fetched where 7.355cm is not even remotely the equivalent conversion to 1.140 inches, and the correct conversion equivalent is actually 2.90 cm.
Due to the math conversion in the CFR it unfairly wrongs veterans in that a skull loss size of 4.5cm x4.5cm equivalent to 1.770 inches, clearly warranting the 50% threshold when comparing in inches cannot even meet the 10% rating in centimeters.
Isn't an error such as this considered a CUE because there would have been a manifestly different outcome for the veteran if they corrected the math conversion?
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Reconsideration? I doubt if the RSVR would even read it Berta or even look at a metric conversion chart. I used the same chart that you provided the link on too! I've been doing my homework and have come across many decisions where the VARO combined the vets skull loss in with a intracranial condition which is a no, no. The DC for skull loss explicitly states that it will not be combined with intracranial conditions for rating.
However Berta and Vike, take a look at this BVA decision involving CUE and entitlement to a 50% rating for skull loss. This vet has a 3cm x 3cm skull loss and is a recent 2006 decision. Not only did the BVA acknowledge the CUE and separate rating for skull loss, they awarded the 50% compensation on the spot along with earlier effective date back to DECEMBER 1968!
"Given the evidence cited above in light of the testimony
presented to the undersigned, and considering the
unlikelihood of any increase in the size of the area affected
in the many years since the in-service injury, the Board
finds that is was "undebatable" that the evidence at the
time of the January 1969 rating decision demonstrated that
the service connected skull wound affected an area of at
least 3 cm. As such, the Board finds that reasonable minds
could only conclude that the evidence of record at time of
the January 1969 rating decision compelled a conclusion that
a 50 percent rating for the veteran's skull wound was
warranted under 38 C.F.R. § 4.71a, DC 5296 (1969). Thus, the
January 1969 rating action may be viewed for the purposes of
this adjudication was flawed at the time it was made, and was
the product of CUE. As such, the criteria for a 50 percent
rating for residual skull loss from a shell fragment wound
effective from December 21, 1968, are met. 38 C.F.R. § 3.400(k) (The effective date to be assigned for
an award based on CUE is that date from which benefits would
have been payable if the correct decision had been made on
the date of the decision found to have been the product of
CUE).
ORDER
A 50 percent rating for residual skull loss from a shell
fragment wound is granted effective from December 21, 1968,
subject to the regulations governing the award of monetary
benefits.
http://www.va.gov/vetapp06/files3/0610575.txt
I don't know what can be done to correct this error in the CFR 38, 4, 4.71a DC 5296. When I contacted the VA last year they said I had to send a letter to the Government Printing Office describing the error and providing the correction. I did that and never heard a thing or have seen any change.
There are tons of vets out there that are unaware that their skull loss is to be evaluated separately under DC 5296 and is not to be combined with intracranial conditions. There are also tons that have been denied, even though they warrant a 50% rating. This is bureaucratic BS at it's finest.
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I might have discovered something that may have to do why I have not been awarded skull loss at the VARO twice over 30+ years. The math is totally off as you can see below in the extract from CFR 38,4, 4.71a under diagnostic code 5296. They somehow can't do the math for converting metric to inches and vice versa.
My skull loss is 4.5 x 4.5 centimeters which is equal to 1.77 x 1.77 inches.
Correct conversion of inches to metric:
1.140 inches is equal to 2.90 centimeters which is larger than a 50 cent piece. CFR is in error as it is not 7.355cm.
1.0 inch is equal to 2.54 centimeters.
Under the provisions of Diagnostic Code 5296, loss of part of
the skull with brain hernia warrants an 80 percent
evaluation. A 50 percent evaluation is the highest rating
available when there is loss of part of the skull without
brain hernia. A 50 percent evaluation contemplates an area
larger than size of a 50-cent piece or 1.140 in2 (7.355
cm2). Intracranial complications are rated separately.
38 C.F.R. Part 4.
Sec. 4.71a Schedule of ratings--musculoskeletal system.
The Skull
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
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\).............................................
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.
------------------------------------------------------------------------
http://a257.g.akamaitech.net/7/257/2422/12.../38cfr4.71a.htm
Effective March 10, 1976, the rating criteria contained in
Diagnostic Code 5296 of the VA's rating schedule were changed; this
resulted in the elimination of the requirement that for a 50 percent
evaluation the skull loss had to be greater than 2 square inches.
The result of the change effective March 10, 1976, was that the
sole requirement for granting a 50 percent evaluation for skull loss
was that the area be larger than the size of a 50-cent piece or 1.140 inches.
This must be why there are so many VBA and COVA decision awarding the correct rating for skull loss. Here is a vet's case
"The assignment of an effective date earlier than February 17, 1989, for a grant of service connection for
skull loss, residuals of a ventriculostomy, is granted." http://www.va.gov/vetapp92/files2/9210110.txt
The incorrect math reflected in the CFR must be the reason a lot of VAROs deny skull loss claims erroneously. I sent a request last year to the GPO informing them of this error in the CFR but nothing ever happened.
As you see the 10% evaluation in the CFR shows the conversion to metric to be 4.619cm for size of a 25 cent piece and my loss is 4.5cm x 4.5cm. So it could be the RSVRs might have figured that the 4.5cm was less than 4.619cm so therefore they might service connect the skull loss this time but with 0% rating based on the erroneous math conversions.
When in reality, 4.5cm x 4.5cm is equal to 1.77 x 1.77 inches and warrants a 50% rating.
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Below is the link to a BVA decision awarding entitlement to service connection for skull loss and this veteran had been previously service connected for post traumatic encephalopathy with borderline memory, evaluated as 30% disabling, major motor seizures, evaluated as 20 percent, and scars secondary to head injury and surgery as 10% for a current combined rating of 50%.
http://www.va.gov/vetapp96/files2/9618053.txt
It doesn't look like they used the same etiology rule in any of the decisions I have seen so far and this case is almost identical to mine. In service head injury, in service surgery, in service skull loss, in service cranioplasty.
I had also sent this case as an exhibit with my claim for skull loss. There has got to be a reason why they didn't award a separate comp for the skull loss claim.
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Thanks Vike,
Here are the answers to your questions:
(1) I spoke with the VA 800# today and a former Marine! He told me the 60% increase was:
(a) Brain Trauma due to Head Injury - - - 50%
(B) Tinnitus - - - 10%
© Scars about head and neck - - - 10%
I have not received the letter as to the specifics, but clearly Skull Loss is not there as a condition. I claimed multiple conditions on this claim:
(1) Skull Loss, inner and outer table, size 4.5cm x 4.5cm and earlier effective date to 1976.
(2) PTSD
(3) Encephalopathy due to brain trauma
(4) Cognitive Disorder due to traumatic brain injury and PTSD
(5) Depression due to brain trauma and PTSD
(6) Scars about head and neck due to traumatic brain injury
(7) Tinnitus
(8) Barrett's Esophagus
(2) What I meant by an open head injury is that it resulted in penetration of the skull whereas a closed head injury is a fracture non-penetrating. In my case they removed both the inner and outer skull larger than a 50 cent piece.
(3) The service connected disability awarded in 1976 states "service connection for residuals skull fracture" and was 10% for "Residuals post concussion syndrome with brain trauma." Apparantly this went away when the recent award of 50% for Brain Disease due to brain trauma.
(4) As far as the 4.5cm x 4.5cm size of the skull loss, there is a preponderance of medical evidence stating that exact size, from the time the skull was removed to date.
(a) 3 Navy Medical Board Reports and two Surgery reports all report Skull Defect, 4.5cm x 4.5cm from 1972 through 1973.
(B) VA C&P exam in 1976 stated X-Ray's revealed a 4.5cm x 4.5cm skull defect in the left parietal area along with review of Navy Medical Review Board reports.
© VA C&P March 2006 stated skull loss, size 4.5cm x 4.5cm
(d) VA Neurological exam Feb 2006 x-ray and MRI reported skull defect, size about 4.8cm x 4.8cm along with Encephalopathy.
So you see all were confirmed to be larger than a 50 cent piece or 4.177cm.
(5) The current CFR 38,4, 4.71a, diagnostic code 5296 was in effect at the time of the claim of 1976 as were the C&P and rating decision. My claim was filed 15 Nov 1976 with ED of S/C 28 Nov 1976:
Effective March 10, 1976, the rating criteria contained in
Diagnostic Code 5296 of the VA's rating schedule were changed; this
resulted in the elimination of the requirement that for a 50 percent
evaluation the skull loss had to be greater than 2 square inches.
The result of the change effective March 10, 1976, was that the
sole requirement for granting a 50 percent evaluation for skull loss
was that the area be larger than the size of a 50-cent piece or 1.140
So you see the 50% evaluation be larger that the size of 50 cent piece or 1.140 inches was in effect.
Could the PTSD and the other brain stuff, encephalopathy, depression, cognitive disorder, memory loss, be lumped into the Brain Disease award. Encephalopathy is an organic brain disease and not a mental one. Can they combine all these into the 50% for Brain Disease due to trauma?
The Skull Loss surely cannot be combined as it is a physical loss part of my skull. It was not combined in the 1977 rating schedule as the 10% for residuals post concussion syndrome with brain trauma, temporal lobe contusion, left chronic as 10% is the highest award for this and cannot be comined with any other code or condition according to CFR 38, diagnostic code 8045-9304.
Again, when I get the actual letter we'll know what it said but clearly how could they overlook the stack of crap they already had from 1976 which I sent to them again along with updated VA Exams and C&Ps that verified I had the skull loss then and I have it now, nothing has changed.
How and why I didn't get a rating for PTSD and Barrett's Esophagus is beyond me. Is PTSD and Brain Disease Due to Head Injury pyramiding?
Vike, I posted a copy of the actual 1977 rating decision just the other day so you could see it. And no there was no mention what so ever of a denial, combining, or anything like that for the skull loss in the rating decision. It just said at the bottom that "outlines of the skull defect were palpated in the left temporal parietal area. Diagnosis was residuals post concussion syndrome with brain trauma, temporal lobe contusion, left, chronic diagnostic code 8045-9304."
So clearly the plot thickens. This is such a cut and dry case it should not warrant more than a 10 minute review at the most to see the preponderance of evidence cleary establishes service connection for 50% skull loss is warranted.
Just like the VA in St. Louis did in 1977, in this recent award it looks like they just ignored the whole skull loss claim period and it was in the hopper since May of 2005. There is over two inches of medical evidence and other documents to support they claim. What in the world could they have done with it? This is entirely absurd that the skull loss is not even mentioned.
Also Vike, if I did not make it clear, there was only one rating decision. The date of the rating decision was dated April 1977 but the effective date for comp was 28 Nov 1976, the day after discharge from the Corps. I filed the claim on 15 Nov 1976 before I was discharged from the Corps.
The diagnostic code that awarded the 10% ED 28 Nov 1976 were 8045-9304 listed below:
Sec. 4.124a Schedule of ratings--neurological conditions and convulsive
disorders.
DC 8045 Brain disease due to trauma:
Purely neurological disabilities, such as hemiplegia,
epileptiform seizures, facial nerve paralysis, etc.,
following trauma to the brain, will be rated under the
diagnostic codes specifically dealing with such disabilities,
with citation of a hyphenated diagnostic code (e.g., 8045-
8207).
Purely subjective complaints such as headache, dizziness,
insomnia, etc., recognized as symptomatic of brain trauma,
will be rated 10 percent and no more under diagnostic code
9304. This 10 percent rating will not be combined with any
other rating for a disability due to brain trauma. Ratings in
excess of 10 percent for brain disease due to trauma under
diagnostic code 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma.
Sec. 4.130 Schedule of ratings--mental disorders. DC 9304 - Dementia due to head trauma
Vike, also did you actually look at the BVA decision for service connection for skull loss with a cranioplasty? It is printed in my original post to this thread. Service connection was awarded for skull loss. A real short BVA decision by far.
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Hey Vike17,
Thanks and yes and no. Yes it answered that a CUE is handled by a different Appeals team and thanks for that explanation. I guess I am having trouble writing my questions clearly. So, is it possible then when and RVSR is rating a claim and sees a claim of CUE (in my case) for them to defer that issue and then forward it to the Appeals team, then notify the Vet that the issue has been deferred with that reason in the decision letter?
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Thanks Berta,
I have a few more questions. Must the CUE filed against the specific VARO that committed the clear and unmistakeable error? In my case I may have two. The 1976 CUE was committed by VARO St. Louis for not applying CFR 38,4, 4.71a and service connecting the skull loss. Service connection and compensation was awarded service connection for residuals skull fracture. Despite undergoing cranioplasty for service connected skull fracture (actually compound depressed skull fracture, open head injury not closed) I was not service connected for the 4.5cm x. 4.5cm skull loss resulting from service connected skull fracture.
Failure of RO to apply CFR 38, 4, 4.71a in rating decision dated 25 April 1977 from VARO St. Louis, MO manifestly altered the outcome of the past unappealed and final claim in that I suffered a loss of 50% VA monthly compensation, per CFR 38, 4, 4.71a, from effective date of 28 November 1976 which is over 30 plus years of substantial monetary loss due to clear and unmistakeable error in rating decision dated 25 April 1977.
I feel judging from the latest percentage notified of that the VARO in Cleveland only awarded 30% for the Skull Loss even though the size is 4.5cm x 4.5cm and the CFR calls for 50% for that size greater than a 50 cent piece. This decision is dated 5 Jan 2007 with retro only to April 05.
Will I have to file two separate CUEs?
Here is the kicker. The first CUE was made by VARO St. Louis. The IF second CUE is made by Cleveland VARO. My current jurisdiction VARO is Chicago and they have never rated me for anything. My C file was transferred to Chicago from St. Louis in June of 05. VARO Chicago farmed my claim out to Cleveland for rating decision.
I have read where NODs and appeals must be submitted to the VARO that rendered the decision. As confusing as it is now, does this mean I have to file the first CUE to St. Louis and the second one to Cleveland even though my VARO in Chicago has jurisdiction of my claim and C-File?
Or should I just file the first CUE if I have to and make it the only one whereas if favorable decision the retro would be two things, 50% rating and EED of 28 Nov 1976 all because the RO failed to consider and apply DC 5296 under the CFR. And this first CUE would also take care of the lesser rating % recently applied by Cleveland, even though Cleveland recently awarded service connection for skull loss? (Don't know for sure.
I guess what I am asking does just the first cue take care of everything else, the rating percentage, and EED retro?
I also found this to be very valuable. A BVA decision awarding service connection for skull loss despite having a crainioplasty.
Citation NR: 9618053
Decision Date: 06/27/96 Archive Date: 07/08/96
DOCKET NO. 94-19 795 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for skull loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Laura M. Helinski, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a February 1994 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri, which denied the benefit sought on
appeal. The veteran, who had active service from November
1979 to December 1983, appealed that decision to the BVA for
appellate review.
The Board notes that in association with an in-service head
injury, the veteran has been service connected for
posttraumatic encephalopathy with borderline memory,
evaluated as 30 percent disabling, major motor seizures,
evaluated as 20 percent disabling, and scars of the right
frontal area secondary to head injury and surgery, evaluated
as 10 percent disabling. The veteran’s current combined
disability rating is 50 percent. Despite undergoing a
cranioplasty for the in-service head injury, the veteran has
not been service connected for skull loss. This appeal is
limited to that issue.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he should be service
connected for skull loss, due to a cranioplasty he underwent
in relation to an in-service head injury. This operation
replaced a portion of his skull with some artificial
material. Therefore, a favorable determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence supports a claim for service connection for skull
loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. Service medical records reflect that the veteran
underwent a right frontal cranioplasty in March 1983 for a
defect resulting from an inservice head injury.
CONCLUSION
Skull loss was incurred in active service. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 1991 & Supp. 1995); 38 C.F.R.
§§ 3.102, 3.303 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran’s
claim is “well grounded” within the meaning of 38 U.S.C.A.
§ 5107 (West 1991 & Supp. 1995). See Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49,
55 (1990). That is, the Board finds that the veteran has
presented a claim which is not implausible when his
contentions and the evidence of record are reviewed in a
light most favorable to that claim. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed. Accordingly, no further development
is required with the duty to assist the veteran in
establishing his claim. 38 U.S.C.A. § 5107.
The veteran’s service medical records indicate that in May
1982 he was hit in the head with a tire iron. This resulted
in a fracture and indentation of the right frontal skull, for
which the veteran immediately had suturing. The defect
measured approximately two and a half by three centimeters.
Following subsequent complaints of headaches, the veteran
underwent a cranioplasty in March 1983 to replace a portion
of his skull with some artificial material.
Based on the evidence of record, the Board concludes that the
veteran experienced some skull loss due to a right frontal
cranioplasty. Hence, the preponderance of the evidence is in
favor of granting the veteran service connection for skull
loss, and the claim is granted. See 38 U.S.C.A. § 5107(B).
ORDER
Service connection for skull loss is granted.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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Can someone explain to me what the differences are if any between the way a regular claim submitted and the process the VA uses to process a CUE. Does the VA disgard a CUE claim that a vet included within a regular claim and process it via a different process? Will the VA process and award retro on CUE that is not a stand alone claim? Or do they defer that CUE portion of a claim and advise the Vet that he must file the CUE under a different claim process?
Just trying to figure out if they are handled in different methods from a regular claim with multiple conditions.
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Dec_05_Informal_Clear_and_Unmistakable_Error.docBerta,
No I did not list CUE on the 4128 but in Dec 05 I submitted a word document detailing all conditions claimed and titled it "Statement in Support of Claim" and chronological order of events, treatments, C&Ps, VA exams, and IMO exams, and referenced medical evidence reports. I have mail receipts the VA received it and it is in my C-File when they sent me copies.
Attached is just page 4 of what I submitted as statement in support of claim wherein I highlighted in yellow "Clear and Unmistakable Error" Failure of Rating officer to assign DC 5296 for skull loss.
Will this document have bearing as claimed CUE?
Something really weird is going trying to post, I've tried to post this six times.
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Berta,
No I did not list CUE on the 4128 but in Dec 05 I submitted a word document detailing all conditions claimed and titled it "Statement in Support of Claim" and chronological order of events, treatments, C&Ps, VA exams, and IMO exams, and referenced medical evidence reports. I have mail receipts the VA received it and it is in my C-File when they sent me copies.
Attached is just page 4 of what I submitted as statement in support of claim wherein I highlighted in yellow "Clear and Unmistakable Error" Failure of Rating officer to assign DC 5296 for skull loss.
Will this document have bearing as claimed CUE?
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Berta,
Did you open the .pdf attachments and look at the rating decision? That is all I received I believe in May of 1977. I did question it but there was nothing that came with it and there was no other documents pertaining to the rating decision in my C-File except this one. I telephoned the VARO in St. Louis when I received the Decision and asked them why I didn't get anything for the claimed skull defect and nothing in the decision denied that claim or was resolved. I was told by the VA rep that it was all together and included in the 10%. He then told me if I wished he would send me a bus ticket to go to the VA hospital and have some exploratory surgery on my brain if I think I should get more compensation.
Naturally I ran like a deer from the VA, especially after two brain surgeries by the Navy, and never wanted to deal with them again. No one told me what I was supposed to do, I filed my claim while I was still on active duty and saw the guy at the VA that the Marine Corps told me to see for filing a VA claim. I sat with a VA rep filling out my claim.
Here's the rules I feel they broke regarding the retro back to 1976:
Claimed: Skull Defect, Temporal Parietal Left, size 4.5cm x 4.5cm #738 (8-11-72) GLNH Surgery numbers and Temporal Lobe Contusion, Left Chronic #8519 (3-11-72).
Rating stated: Service connection for residuals skull fracture and stated "In the absence of any objective findings a 10% evaluation will be assigned under diagnostic code 8045-9304, Residuals post concussion syndrome with brain trauma, temporal lobe contusion, left chronic."
DC 8045 Brain disease due to trauma: CFR 38,4,Sec. 4.124a
Purely neurological disabilities, such as hemiplegia,
epileptiform seizures, facial nerve paralysis, etc.,
following trauma to the brain, will be rated under the
diagnostic codes specifically dealing with such disabilities,
with citation of a hyphenated diagnostic code (e.g., 8045-
8207).
DC 9304 Dementia due to head trauma: CFR 38, 4, Sec. 4.130
Purely subjective complaints such as headache, dizziness,
insomnia, etc., recognized as symptomatic of brain trauma,
will be rated 10 percent and no more under diagnostic code
9304. This 10 percent rating will not be combined with any
other rating for a disability due to brain trauma. Ratings in
excess of 10 percent for brain disease due to trauma under
diagnostic code 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma.
DC 5296 Skull, loss of part of, both inner and outer tables: CFR 38,4,Sec. 4.71a
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\).............................................
I feel they failed to apply DC 5296 and rate the skull loss separately from DC's 8045 - 9304 per CFR 38 part 4 sections. The skull loss is totally separate condition than brain trauma and I should have been awarded compensation for. The same identical medical evidence used to award the 10% for residuals of brain trauma supports and proves service connection for the Skull Loss resultant from same TBI incident. The rating official failed to evaluate the VA C&P and military medical evidence for the skull loss. And according to the rating I received the diagnostic code 8045-9304 cannot be combined with any other disability due to brain disease due to trauma.
And heck ya there would have been a manifestly different outcome, 60% versus 10% over 30+ years.
I thought you can only file an appeal based on a denial or decision on a condition claimed but not ever adjudicated. Guess I'm wrong.
I don't know how to go about this cue business but I did state with the documents I submitted to the via that it was a clear and unmistakeable error that the Rating Officer failed to apply DC code 5296 based on the same identical evidence used in the rating decision, even mentioned in the narrative of the decision there is a skull defect.
Are these the right rules to use that they broke?
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The thing that I know is wrong and I am concerned is the claim for EED to 26Nov76 (day after discharge) claimed formally 15Nov76 (10 days prior to discharge).
What is the process to pursue when a valid claim is made back in 76 without a decision denying, deferring, or approving?
I can't appeal something that has not yet had a decision at all can I?
If the skull loss is not one of the listed claims included in the recent 60% decision, then am I back to it being an open claim? To re-open a claim would mean that there had been some kind of previous decision and in this case there hasn't.
How does one get a 30+ year open claim adjudicated by the VA?
I have read some CUE claims based on EED, but all of them that were denied was due to a long delay between the time they were denied without appealing the decision.
But again I only received a decision one of the conditions I claimed at the same time which there was an award of 10% and it specifically only addressed one of the two conditions I claimed while still in service.
The number two condition claimed was the Skull Loss, 4.5cm x4.5cm which is 50% per CFR diagnostic code 5296. This is an organic physical loss from an open not closed TBI of which that much skull was removed, brain debridement, and cranioplasty (plastic) formed to the skull where my own skull is missing.
The code they used to award the 10% for Residuals post concussion due to TBI is not to be combined with any other diagnostic code and will not exceed 10% when there is no objective finding.
So none of this washes and I'm really skewing now. Yes I have a cognitive disorder, memory loss, encephalapathy, and PTSD but I am not that dumb.
I think when I get the letter, I'm going to make an appointment and take all this crap and chat with Senator Barrack Obama and see what he thinks of this fiasco.
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Berta and Elders,
So is this a CUE or an OPEN Claim for Skull Loss? I attached just four pertinent documents for you to look at, essentially the statement in support of claim, original claim, and rating decsion. Note in the last paragraph where the rating officer mentions the skull defect in the rating decision. The other documents referenced as enclosures were all sent to the VA at the same time.
Both Cue and Open claim are subject to retroactive payment aren't they?
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Berta,
No, I didn't file a FORMAL CUE claim but I did state that on statement in support of claim when I filed that it was a clear and unmistakable error.
Sec. 3.400 General.
Except as otherwise provided, the effective date of an evaluation
and award of pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened after final
disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.
Sec. 3.160 Status of claims.
The following definitions are applicable to claims for pension,
compensation, and dependency and indemnity compensation.
(a) Informal claim. See Sec. 3.155.
(B) Original claim. An initial formal application on a form
prescribed by the Secretary. (See Sec. Sec. 3.151, 3.152).
]© Pending claim. An application, formal or informal, which has not been finally adjudicated. (d) Finally adjudicated claim. An application, formal or informal,
which has been allowed or disallowed by the agency of original
jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See Sec. Sec. 20.1103 and 20.1104 of this chapter.)
The reason I consider it an open claim is the above. The VA did neither award nor deny the skull loss, they just forgot look in the CFR under muskoskeletal DC 5296 to award at least 50%. There was no denial or award so I assume it to be an open unadjudicated claim.
This is why I feel I should be paid retro:
Sec. 3.400 General.
Except as otherwise provided, the effective date of an evaluation
and award of pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened after final
disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.
I am drafting up the CUE now, what do you think of what I have so far?
"Clear and unmistakable error, Skull Loss
The essential argument is that the April 1977 rating
decision was clearly and unmistakably erroneous in its
failure to apply pertinent laws and regulations. Allegedly,
the grant of 10 percent evaluation for residuals post
concussion syndrome with brain trauma, temporal lobe
contusion, left, chronic in May of 1977 was based on evidence
containing virtually the same facts as was the rating
decision of April 1977 granting only a 10 percent
evaluation. Therefore, the former decision udebatably
prejudiced the appellant by failing to properly consider the
evidence.
Further rating decision dated April 1977 stated
“Neurological examination to a large extent within normal limits although
outlines of the skull defect were palpated in the left temporal
parietal area.
Despite undergoing a cranioplasty for the in-service head
injury, the veteran has not been service connected for skull
loss."
As far as I am concerned and my interpretation of the CFR my entitlement and initial claim both arose on 26Nov76, my effective date of decision awarding the 10%.
Must Separate Ptsd And Concussion Residuals
in VA Disability Claims Research
Posted
Hey Jangrin,
Yes, if they increased the Post Concussion Residuals, due to brain trauma, I think they would have to pay me some retro on that by itself. In their decision later where they state what would be needed for a 70% evaluation under PTSD they listed flattened effect, suicide ideation, etc.
The actual civilian psychiatrist listed those two as symptoms of my PTSD, but they did not detail the psychiatrists diagnosis and symptoms. Just that there was a diagnosis of PTSD by Dr XXX XXXXX and the date of the diagnosis letter. So I should have gotten 70% for PTSD and previous PCS residuals an increase of 30% due to encephalopathy of which is an organic brain disease (dead tissue and tissue loss). The thing is I have had the encephalopathy due to the post operative residuals of the TBI from the beginning and was documented by the military service medical evaluations, along with EEGs over two years later still showing "A clear focal slowing in the left parietal area." The neurologist at the VAMC last year confirmed the same thing and told me as did the Neuropsychologist consult that the EEG the VA did back in 1977 was definitely misinterpreted. So the condition existed immediately post surgery, all through active military service and then after discharge and filing a claim, the VAs EEG at that time stated the EEG was essentially normal.
My brain didn't grow new matter and correct itself just for the VA examination in 1977. That kind of thing, Post traumatic encelphalopathy due to TBI just don't go away and come back, it is permanent and gradually gets worse, more loss of brain tissue.
I'm not doing anything right now, just awaiting the rest of the decision for the pending retro skull loss and IU decisions. When I get those I will know which way to go. But, I am leaning toward the reconsideration using new information to support my contention that the PCS and PTSD are rated separately and the PCS rated separately based on the encephalopathy where the VAMC neurologists stated there is post-traumatic encephalopathy more likely than not due to Service connected TBI. The RO had this VA neurologists opinion regarding the encephalopathy.
Just cooling my heels, but still planning the future battle and trying to get the ducks in a row.