Help Please - Need Your Opinion

[carlie]

A OIF/OEF vet I'm helping was in a humvee roll over and was pinned underneath the vehicle with

multiple injury's. (Afghanistan)

This vet had to have hardware surgically inserted.

Some issues were SC'd right out of the box and some denied issues were NODDED, we had

a hearing with a DRO and so far I am still concerned with the following.

The DRO Decision (granted 5 issues) and a separate SOC (denied 3 issues) both dated March 26, 2010.

From the SOC dated March 26, 2010:

"REASONS AND BASES:

2. Entitlement to a higher evaluation for multiple fractures base of skull and right orbital

fracture, status post motor vehicle accident, currently evaluated as 0 percent disabling.

A review of your service medical records show you suffered multiple fractures base of skull and

a right orbital fracture in April 2005 following a motor vehicle accident. You subsequently

underwent an open reduction internal fixation and an exploration of the orbital floor

with repair. In May 2007, you underwent a right zygomaticomaxillary complex orbital floor

reconstruction.

At the pre discharge VA examination, facial x-rays showed old healed fracture with surgical

repair in the floor of the right orbit and right maxillary sinus. Skull x-rays were normal. The

physician diagnosed post repair of right orbital fracture.

You underwent a DRO hearing on October 14, 2009. You brought in a model of your skull that

was taken during an examination. You noted that it shows where part of your cheekbone was

gone and they had to rebuild that part.

The cited outpatient records from Bay Pines Medical Center were reviewed and did not

show an increase in your evaluation.

We requested a VA exam to determine if you had any skull bone loss. A VA exam addendum

from Bay Pines Medical Center dated March 12, 2010, noted that the CT scans were reviewed. The

examiner noted that it is a question as to whether the veteran has skull loss. The examiner noted that you

have no skull bone loss.

As the evidence does not show an increase in your evaluation, entitlement to a higher evaluation

for multiple fractures base of skull and right orbital fracture, status post motor vehicle accident,

currently evaluated as 0 percent disabling, is denied. A higher evaluation was not assigned as the

examiner noted that you did not have any skull bone loss.

A noncompensable evaluation is assigned unless there is skull loss without brain hernia over an

area smaller than the size of a 25-cent piece or 0.716sq. inches (4.619 sq. cm.).

The rule regarding benefit of reasonable doubt does not apply because the preponderance of the

evidence is unfavorable."

- - - - - - - - - - - - - - - -

Fast forward to:

"Nov 12,2010

VAMC Progress Notes - DENTAL / ORAL & MAXILLOFACIAL SURGERY PROGRESS NOTE

Objective :

Removal of infected hardware.

Assessment :

This is a 26 y/o male patient s/p ZMC fracture 2005 in Afghanistan after

vehicle roll-over. S/p reconstruction 2007 with Medpor

reconstruction Fort Bragg, NC. Implant had to be removed due to infection.

Patient presents a depressed right zygomatic area due to skull defect or

loss in the area related to trauma received. Patient will need

reconstruction in the area in the future.

PATHOLOGY REPORT :

GROSS DESCRIPTION :

Hardware Right Maxillary Area :

Received in formalin are two pieces of what appears

to be synthetic material resembling flat bones (larger 3.8 X 2.5 X 0.8 cm,

smaller 3.5 X 1.7 X 0.4 cm in greatest dimension).

Photographs are taken."

- - - - - - - - - -

MY QUESTION :

It is my opinion that this additional medical evidence (quoted above) should be sufficient to warrant a

reconsideration of the prior DRO decision (of the SC'd zero disability evaluation) to be increased to 50 percent

for this disability of Diagnostic Code 5296 - Skull, loss of

http://edocket.acces.../38cfr4.71a.htm

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\ (7.355 cm \2\)... 50

Area intermediate... 30

Area smaller than the size of a 25-cent piece or

0.716 in \2\ (4.619 cm \2\)... 10

Note: Rate separately for intracranial complications.

ALSO - THESE ARE PHOTOGRAPHS THE SURGICAL UNIT TOOK OF THE

IMPLANTED HARDWARE THAT HAD TO BE REMOVED :

Edited February 26, 2011 by carlie
spacing

[Berta]

He obviously has skull loss based on this record:

"Nov 12,2010

VAMC Progress Notes - DENTAL / ORAL & MAXILLOFACIAL SURGERY PROGRESS NOTE

Objective :

Removal of infected hardware." which came after the C & P addendum exam was done on March 12, 2010.

Go for this Carlie!

In my opinion (yeah right like VA listens to my medical opinions)

he had skull loss even with the implants.

"Skull x-rays were normal" I guess maybe they 'looked' normal with the hardware but the fact is he had loss of skull and still does.

A X ray now wouldnt look normal.That photo is worth a thousand words.

Is there basis here for claim under Section 1151 38 USC?

Then again with this new evidence, VA should award for skull loss anyhow in my opinion.

[carlie]

Berta,

Thanks for the post.

I'm thinking it should be granted without too much difficulty,

but we all know how fast things can go down hill - lol.

[carlie]

bump

[Philip Rogers]

I agree w/Berta. He should get paid for the loss. Just because they patched it doesn't mean he doesn't have a loss. I mean if you've lost a leg and they give you a prosthesis, it doesn't mean you haven't lost the leg. jmo

pr

[deltaj]

This veteran had an auto accident in a humvee while in service. My advice is to find out where he was treated for that injury and have him get the surgical records showing some of his skull was removed in the cheekbone area. Did the removal of a portion of the cheekbone occur while he was still in service? The new SF 180 that is sent to the National Personnel Records Center by a veteran requesting service medical records now has a section where the veteran lists his inpatient hospitalizations. If he gets this service record showing removal of portions of the skull (the cheekbone) he can reopen any denied claim on skull loss and related injuries under 38 USC 5108. Also this veteran needs to request a copy of his C file from V.A. because the National Personnel Records Center lent the original of service medical records to V.A. after V.A. requested those records in support of his claim. Sometimes V.A. disregards or ignores evidence in the veteran's C file.

Edited February 27, 2011 by deltaj