ptsd Notified Of Rating

[RockyA1911]

I spoke with a VA service rep this am and was told my claim is in for authorization and rating was completed last Friday. I can't believe this crap. He told me that I have been increased from 10% to 60% with retro back to April 05. My effective date of my claim is 25 Mar 05.

The skull loss alone under diagnostic code 5296, inner and outer tables, for size exceeding 4.177cm or larger than a 50-cent piece at 50%. Both past and recent SMRs and VA medical records verified mine to be 4.5cm x 4.5cm. The skull loss was claimed in 1976 on the same claim form using the exact same medical evidence used when they awarded me 10% in 1976, for also claimed post concussion residuals the day after discharge from the Marine Corps. This is an open claim since Nov 1976 and I should get retro back to then according to the CFR. My entitlement arose in Nov 76 for the Skull Loss.

Since I was already getting 10% and if they awarded the 50% for skull loss but not retro, that is 60% combined right there.

That means they must have denied:

Post Traumatic Encephalopathy due to S/C TBI (C&P More likely than not)

Post Traumatic Stress Disorder (C&P More likely than not, IMO More likely than not, combat award)

Surgical Scar from TBI surgery and cranioplasty (C&P More likely than not)

Cognitive Disorder due to S/C TBI (C&P More likely than not)

Tinnitus (C&P more likely than not)

Skin Disorder (C&P more likely than not)

Unemployability (Psychiatrist and VA Neuropsychologist, both stated unemployable)

I guess I won't get the actual brown envelope to where I can figure out what they did wrong or what evidence they looked at. But, clearly they had to have not even looked or had a lot of it or were missing my claims.

Either way, after waiting almost two years this really sucks the big one.

I even made copies of the CFR reg on retro payments, the 1976 claim with their stamp on it, their 1977 VA

C&P and neurological exam report, and their 1977 rating decision rating decision form that even mentioned the skull defect and size in the narrative portion. At the bottom of the decision it had just "10% award for post concussion residuals due to head injury." I sent that two them almost two years ago with the statement in support of claim form and listed each document as an exhibit.

I just don't understand how they could have turned down seven of my claims as even just the Skull Loss and PTSD alone if at least 30% is 65 rounding to 70%.

I don't understand how the VA can service connect the TBI skull loss and the post concussion residuals due to TBI and deny service Encephalopathy, Surgical Scar, and cognitive disorder due to the same S/C TBI.

This IS FUBAR at it's best.

[Berta]

"This is an open claim since Nov 1976 and I should get retro back to then according to the CFR. My entitlement arose in Nov 76 for the Skull Loss."

I am not sure how you see that as a "open" claim.

If the VA had denied this claim long ago-and yet had medical evidence that the rating should have been higher-it could be basis for a possible CUE claim.

Did you file a formal CUE claim regarding this?

[gwvet90]

I know it's hard Rocky - we're still in a "low" from all the denials we got. It takes a while to bounce back - but your claim is valid & you have medical evidence to prove it & YOU WILL WIN ! Waiting it out is tough, but you will succeed.

At a minimum - with 60% you should get UI. Maybe the other claims are still being rated & your service officer only had the info on the increase right now..... I hope when you get the brown envelope it will have some great suprises for you.

[RockyA1911]

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%.

Edited January 8, 2007 by RockyA1911

[Pete53]

Get it in writing and than go after them. Its the only way to go. Good Luck

[RockyA1911]

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?

Skull_Loss_claim_and_decision_1977.pdf

[john999]

Rocky

When you get it in writing you can address every aspect of your claims. I think it is important that you get a denial for all the issues you raised. If for some reason you don't get a denial for every issue be sure and make it explicit in your NOD for every claimed disability. This is typical VA. They give you a rating and hope you will go away. If one of the claims was at least 40% you have enough for IU. When you get the SOC you really want to go over it with a microscope. Hey, the bastards awarded me 70% on one disability and denied IU. I bet they did not deny or rate every disability your claimed, or you got a bunch of 10% ratings. I think I would go right back to the RO with more evidence and ask for a DRO Hearing. If you got even 0% ratings for most of the issues you raised you are on the right road because it is much easier to get an increase than an initial rating.