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.

[marinejay]

sixcents 2 comments ago seems to be the norm. Also with all the vets returning for iraq screwed up, it will all petro to the fire. What you will have is more hands competing for the same amount of dollars, so if that a recipe for low balling, screwing veterans out of compensation then call me stupid.

Hopefully, and i mean hopefully congress increases the budget to service all the returning veterans and the older veterans that's been in the system for a long time.

Sixcents conclusion was on point to me, and he made some very good points that i can relate to, b/c i have experienced them. I guess this may be one where we will agree to disagree.

marinejay

[Vike17]

Sixthsense,

I’m going to have to disagree with on some of your points in your post. For example, you said

“Otherwise, how can a claim, which essentially remains the same, with the sane supporting evidence and diagnpstic tests evoke a higher (sometimes MUCH higher) rating after a NOD. I have seen this again and again”

Like I said before, almost every rating decision has a certain amount of judgment required by the decision maker. Furthermore, as a veteran’s advocate, you should know that DRO’s tend to be very liberal when it comes to interpreting the evidence. For example, let’s say you have a claimant that was awarded 50% for PTSD based on the symptoms of Flattended effect and some of the other symptoms associated with the 50% evaluation, and with a GAF of 55, but other evidence of records also show that the veteran has a severe occupational impairment due to their PTSD. This claim could warrant a percentage anywhere between 50% and 100%, any of which would be correct according to the rating schedule. So, taking the above scenario, a RVSR rates the claim in his judgment that the veteran warrants a 50% evaluation. The veteran then appeals the decision and a DRO grants 100% evaluation based on the severe occupation impairment. Both decisions are base on judgment of the decision maker, and there really isn’t a correct answer in this case.

“I think you will find that most of the advocates will NEVER accept the first rating given unless it is the magical silver bullet. I think again that you will find that most advocates agree with my position”

Many times veteran’s advocates and veterans themselves tend to appeal ratings that have no merit with the hopes that a DRO or the BVA will over look something and grant whatever the are claiming. Recently I had a veteran that wanted to appeal a 20% rating for residuals of a broken finger! When in reality it should have been rated at 10% instead! Then we wonder why there is such a back log with claims and appeals.

“While I agree that the rater probably doesn't want to "save government money", the simple fact is that they exsist only to process claims and do upon occasion seem to treat veterans as people who are applying for welfare rather than compensation”

If they are RVSR’s, then that’s there job; to “exist only to process claims.” When on ‘occasion’ veterans are treated as people applying for welfare is most unfortunate, but it looks like it’s not an every day occurance and the norm at VA like I said before.

“I have sat down with raters one-to-one and find many of them to be decent people, but.. again this is my personal opinion... they are the minority. Most raters seem to start a claim with the assumption that it is false and try to skew the evidence to that end. The applicant of course takes exactly the opposite tack, and trys to skew the same data to support their claim. The big difference being that the rater should simply follow the guidlines established in CCFR 38, and M21-1 and applicable case law”

I, too, have talked to raters and DRO’s (and not just from one Regional Office) numerous times and I can tell you from the conversations that, for the most part they are caring individuals trying to do the best job they can with the limited resources available to them. However, there was one I had a conversation with I think a couple of years ago that was really a pain in the ass, but this supports what I’ve been saying the whole time; this isn’t the norm, but rather the exception. Also, most of the raters and DRO’s I’ve talked to were also veterans like us and very sympathetic towards the veteran in question.

“Yet again, and again they simply DO NOT. I just had a claim for a heal spur on a soldier denied due to no service connection when we/he had a line of duty determination letter (yes) for the exact injury. The rater stated that the soldier was "inactive" duty, misunderstanding what IADT meant. Now if they cannot read their own regulation for something that simple what about a complex judgement”

First of all, VA does not have to except a “line of Duty” determination by the Service Department if it not in accordance with VA rules and Laws (see §3.1(m)). Just because the soldier has a line of Duty determination through some proceeding by the service i.e. UCMJ action ect.. does not bind VA to the same decision, especially if there is evidence of record that otherwise support another finding. The findings must be consistent with VA regulatiopns and laws!! Having said this, The VSR or RVSR may have missed this one, which wasn’t intentional! For what it worth, just the mere fact that a veteran’s SMR’s show an injury does not necessarily warent service-connected compensation. There must be residuals of that injury to warrant service-connection. I have seen numerous times where veterans have claimed some injury that happened while in the service, but they had no residuals of that injury and VA awarded a 0% rating anyways. I consider that being pretty liberal, don’t you think so?

“We say that "they are trying to save money"... well explain to me why there is SUCH a drastic jump from 70% to 100% compensation. If the rate was say $2400 at 100%. One would expect the comp to increase by $240 per 10%, yet you and I know that is simply NOT the case. The VA has skewed the comp tables so that the majority of the veterans will not be able, or will have an extreamly difficult time ever getting to the higher paying brackets of 80, 90 and 100%”

VA compensation is intended to reflect the earnings capacity lost by a veteran who has service-connected disabilities. So, for example, if a veteran warrants a 70% rating for some disability or disabilities, then they are considered to be able to earn the other 30% by means of a substantial gainful occupation. For those veterans that have lost their earning capacity that do not meet the 100% rating, there is IU! Furthermore, the VA has implemented a ratings table that is consistent with the rest of the disability compensation industry, such as insurance companies ect.. Actually, when one does a little research, the VA’s system is more liberal than most of the other systems out there. Now, I do have to admit that the actual 10% through 100% compensation rates are a little out of whack. I would also say that the rates should be adjusted to what you stated, but like I said, the VA has implemented a system consistent with others in the same industry. I suspect this would be ultimately up to the law makers in Washington, D.C. even though the Secretary is authorized to make changes to the CFR 38 as he see fit.

“Nope not all vets even qualify for 10%. I handle claims all the time where honestly any service-connection at all is tenuous at best. If a vet really has not SC injury, and is destitute thats what the pension is for. However, I can speak from personal experience when I say that the VA C&P exams SELDOM follow even their own Physicians reference on exactly what and how to measure posture, range of motion, sensitivity, streangth, deep tendon reflexes, abduction, etc etc etc etc. I have found that the VA C&P physicians seldom if ever do a complete work-up, yet when the write up comes in 30 minutes later... magically plantar flexion, dorsi flexion and all the others appear, with no testing having been done. Thats why I push the EMG so hard. There is no real subjectivity to its diagnosis if properly administered”

Like I’ve said many times over, a major portion of the back log comes from veterans filing bogus or “tenuous” clams at best. I have had numerous requests from veterans to help them with their claims to get that ‘easy” disability compensation. Needless to say, this pisses me off to no end, and we veterans wonder why evidence gets looked over. It seems that you have encounted your fair share of this also. A large part of it is you have VSR’s and RVSR’s trying to sort this crap out and having to go through a zillion pages of “evidence.” Then, couple this with trying to meet the production quota to clear the backlog! Ultimately real evidence gets missed or lost! One has to remember, that VHA and VBA are two separate entities within VA and have actually nothing to do with each other except, as you noted above, administering C&P exams for ratings. Like I’ve said in previous posts, there are good and bad doctors the world over and there is “misdocumentaion” of disabilities in both the private sector as well as VA. I suspect that the lack of training of the VA Physicians comes from the monsterous backlog of claims and C&P exams needed, and the individual VAMC’s don’t have the time nor the resources to implement specific training.

“I have handled DOZENS of claims where the vet received 40% for their lumbar spine and I was satisfied that was a fair rating”

It sounds like you’re receiving for the most part fair ratings for your claimants.

“I have one on my desk now. Yet they rated the guy at 30% for his left leg, with an AFO and complete loss of dorsi-flexion and severly reduced plantar flexion.... thats loss of use all day long, I'll file for it, and win it one shot one kill and I'd be more than willing to bet serious money on it since we have an EMG showing paralysis of the anterior tibialis nerve and common peroneal. I'll win at 50% not 30%, but the VA didn't offer to tell the vet they could even file the loss of use. Then hell also qualify for the adaptive vehile grant, possibly the adaptive housing as well, but will the VA mention it? Maybe, and its a slim one, maybe in his rating there will be one small section that briefly and vauguely covers it”

It looks like the VA already rated the loss of use at 30%. Are you saying you’re are going to file another claim for this??? As an experienced Vet rep, you should know that claiming both the Anterior tibial nerve (deep peroneal) and External popliteal nerve (common peroneal is pyriamiding and would only warrant the higher of the two evaluations! Furthermore, you won’t win a 50% evaluation, the highest evaluation DC, 8521 External popliteal nerve (common peroneal) is 40% and under DC 8523 Anterior tibial nerve is 30%!!!!! Now the issue is whether the veteran meets the criteria for loss of use and SMC (probably the ‘k’ award). Any RVSR or DRO will tell you determining SMC and their regulations are probably one of the most complex ratings to sort out. Maybe Rickb54 can lend his expertise in this matter, as I believ he has the "k" award for drop foot. I’m not up to speed with the SMC except for the ‘k’ award and the LOU of a creative organ. Or the ‘s” award regarding the 100+60 rule. As far as the adaptive housing grant, the basic requirement of this is “loss of use of BOTH lower extremities.”

“I have personally handled and am currently handeling the claims for veterans who were shot in Vietnam, and received NO compensation for over 30 years. I'd have to talk to them, but if any one agrees than I'd be MORE than willing to let you verify this over the phone. No claim was ever filed for these guys and while they had received medical care from the VA for 30+ years, nobody ever told them they could file. They thought it was welfare”

Why is it VA’s fault if the veteran hasn’t claimed any disabilities incurred while in the service? The VA has a “duty to Assist” after the veteran has filed a claim, not before. Like I said, the VHA and VBA are two separate entities within VA and generally don’t communicate to one another except for the purpose of C&P exams ect…It isn’t VA’s fault that the veteran thought it was some type of welfare! The VA has been around in some way shape or form since before WWII. The mission of the VHA is to administer medical care to veteran that qualify for their service, not to make sure they file disability compensation claims with the RO’s. Am I missing something here, after all, I assume from your post, they were treated for their injuries after they returned from Vietnam.

And there’s my opinion! Oh, by the way, I never implied that some veteran was “Whining.” However, if some deserving veteran wants to whine, then, of course they can, this is the good ole US of A.

Vike 17

Edited January 9, 2007 by Vike17

[Berta]

Rocky-

"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"

whe the decision comes , there should be information as to how they handled that-

If the 1976 decision awarded the 10% -and a NOD was not filed ---that claim is not open any longer.But could be cued.

A formal CUE claim has three facets-and the VA wants them clearly spelled out in the claim:

1. final unappealled decisions and date of it (I sent them copy of whole decisions I Cued)

2. misapplication of the regs at time of the alleged CUE (they want to know -was it improper Diagnostic code? or whatever reg was broken? I sent the regs they broke.

3. manifestly different outcome if CUE succeeds (meaning as you know- more retro)

One CUE I had was denied 6 months ago and I immediately asked them for a reconsideration-

based on what they said in the decision, this is possibly what you could do too-and

they did start to work on this CUE again .

With the reconsideration request- I argued against the reason they denied-(they said vet did not have Sec 1151 pending when he died) yet it was right in the c file and I reopened his 1151 in 1995.

The documentation they had was clear on that.

I again stated the regs they broke, attached the actual regs,attached M21-1 that tells them how to handle the claim, and referenced 4 BVA decisions (copying the actual wording of one of them into the request) and I also attached a Office of General Counsel Pres. Op that fully supported my CUE.

I also reinterated that this claim is not limited by Bell as the had had , in their possession since 1988, significant evidence that supported the CUE.

They had listed the OGC pres op under Evidence as simply a letter from the VA OG-it was not a letter- it was support for the reg they broke.They need to read it.

I dont think you have enough info yet from VA as to whether they addressed the CUE issue or not.

[sixthscents]

I’m going to have to disagree with on some of your points in your post. For example, you said

“Otherwise, how can a claim, which essentially remains the same, with the sane supporting evidence and diagnpstic tests evoke a higher (sometimes MUCH higher) rating after a NOD. I have seen this again and again”

Like I said before, almost every rating decision has a certain amount of judgment required by the decision maker. Furthermore, as a veteran’s advocate, you should know that DRO’s tend to be very liberal when it comes to interpreting the evidence. For example, let’s say you have a claimant that was awarded 50% for PTSD based on the symptoms of Flattended effect and some of the other symptoms associated with the 50% evaluation, and with a GAF of 55, but other evidence of records also show that the veteran has a severe occupational impairment due to their PTSD. This claim could warrant a percentage anywhere between 50% and 100%, any of which would be correct according to the rating schedule. So, taking the above scenario, a RVSR rates the claim in his judgment that the veteran warrants a 50% evaluation. The veteran then appeals the decision and a DRO grants 100% evaluation based on the severe occupation impairment. Both decisions are base on judgment of the decision maker, and there really isn’t a correct answer in this case.

..........

Well ok, but by what you just said there is a great deal of leeway, so why wouldn't a vet try to NOD for a higher rating? There is the possibility of getting a lower rating but in my experience that is not the normal outcome. Normally they get either the same rating, or an increase. While there are exceptions to every rule, generally I find that in the claims I have handled, the first rating is only the start.

“I think you will find that most of the advocates will NEVER accept the first rating given unless it is the magical silver bullet. I think again that you will find that most advocates agree with my position”

Many times veteran’s advocates and veterans themselves tend to appeal ratings that have no merit with the hopes that a DRO or the BVA will over look something and grant whatever the are claiming. Recently I had a veteran that wanted to appeal a 20% rating for residuals of a broken finger! When in reality it should have been rated at 10% instead! Then we wonder why there is such a back log with claims and appeals.

.................

Well I dont disagree with you there, an appeal must pass the common sense test. Yet where a judgement call is being made, and I feel, or thru talking with others feel that the rating is reasonably lower than normal, an appeal is called for.

“While I agree that the rater probably doesn't want to "save government money", the simple fact is that they exsist only to process claims and do upon occasion seem to treat veterans as people who are applying for welfare rather than compensation”

If they are RVSR’s, then that’s there job; to “exist only to process claims.” When on ‘occasion’ veterans are treated as people applying for welfare is most unfortunate, but it looks like it’s not an every day occurance and the norm at VA like I said before.

................

I've delt with VARO's all over the US, and this seems to be a pervasive attitude. Perhaps its due to shell-shock from the sheer amount of claims, but that is not the Veterans fault.

“I have sat down with raters one-to-one and find many of them to be decent people, but.. again this is my personal opinion... they are the minority. Most raters seem to start a claim with the assumption that it is false and try to skew the evidence to that end. The applicant of course takes exactly the opposite tack, and trys to skew the same data to support their claim. The big difference being that the rater should simply follow the guidlines established in CCFR 38, and M21-1 and applicable case law”

I, too, have talked to raters and DRO’s (and not just from one Regional Office) numerous times and I can tell you from the conversations that, for the most part they are caring individuals trying to do the best job they can with the limited resources available to them. However, there was one I had a conversation with I think a couple of years ago that was really a pain in the ass, but this supports what I’ve been saying the whole time; this isn’t the norm, but rather the exception. Also, most of the raters and DRO’s I’ve talked to were also veterans like us and very sympathetic towards the veteran in question.

...............

OK, I'll agree that I've met some sympathetic raters, but that does not equate to a reasonable rater, or one who renders a fair rating decision.

“Yet again, and again they simply DO NOT. I just had a claim for a heal spur on a soldier denied due to no service connection when we/he had a line of duty determination letter (yes) for the exact injury. The rater stated that the soldier was "inactive" duty, misunderstanding what IADT meant. Now if they cannot read their own regulation for something that simple what about a complex judgement”

First of all, VA does not have to except a “line of Duty” determination by the Service Department if it not in accordance with VA rules and Laws (see §3.1(m)).

.................

Well, actually yes they do, if there is no obvious reason not to, they are required to accept the Secretary of the branch or their representatives decision.

CFR 38, 3.1 (m) which states:

In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

Just because the soldier has a line of Duty determination through some proceeding by the service i.e.

................

In this i case it was simply due to an injury incurred during training

UCMJ action ect.. does not bind VA to the same decision, especially if there is evidence of record that otherwise support another finding. The findings must be consistent with VA regulatiopns and laws!! Having said this, The VSR or RVSR may have missed this one, which wasn’t intentional! For what it worth, just the mere fact that a veteran’s SMR’s show an injury does not necessarily warent service-connected compensation. There must be residuals of that injury to warrant service-connection. I have seen numerous times where veterans have claimed some injury that happened while in the service, but they had no residuals of that injury and VA awarded a 0% rating anyways. I consider that being pretty liberal, don’t you think so?

..................

I was not commenting upon rating, simply upon service-connection, ratings next...

“We say that "they are trying to save money"... well explain to me why there is SUCH a drastic jump from 70% to 100% compensation. If the rate was say $2400 at 100%. One would expect the comp to increase by $240 per 10%, yet you and I know that is simply NOT the case. The VA has skewed the comp tables so that the majority of the veterans will not be able, or will have an extreamly difficult time ever getting to the higher paying brackets of 80, 90 and 100%”

VA compensation is intended to reflect the earnings capacity lost by a veteran who has service-connected disabilities. So, for example, if a veteran warrants a 70% rating for some disability or disabilities, then they are considered to be able to earn the other 30% by means of a substantial gainful occupation. For those veterans that have lost their earning capacity that do not meet the 100% rating, there is IU! Furthermore, the VA has implemented a ratings table that is consistent with the rest of the disability compensation industry, such as insurance companies ect.. Actually, when one does a little research, the VA’s system is more liberal than most of the other systems out there. Now, I do have to admit that the actual 10% through 100% compensation rates are a little out of whack. I would also say that the rates should be adjusted to what you stated, but like I said, the VA has implemented a system consistent with others in the same industry. I suspect this would be ultimately up to the law makers in Washington, D.C. even though the Secretary is authorized to make changes to the CFR 38 as he see fit.

...............

Well I agree as well... though I have not looked deeply into other compensation tables etc. If you say its in line ok.

“Nope not all vets even qualify for 10%. I handle claims all the time where honestly any service-connection at all is tenuous at best. If a vet really has not SC injury, and is destitute thats what the pension is for. However, I can speak from personal experience when I say that the VA C&P exams SELDOM follow even their own Physicians reference on exactly what and how to measure posture, range of motion, sensitivity, streangth, deep tendon reflexes, abduction, etc etc etc etc. I have found that the VA C&P physicians seldom if ever do a complete work-up, yet when the write up comes in 30 minutes later... magically plantar flexion, dorsi flexion and all the others appear, with no testing having been done. Thats why I push the EMG so hard. There is no real subjectivity to its diagnosis if properly administered”

Like I’ve said many times over, a major portion of the back log comes from veterans filing bogus or “tenuous” clams at best. I have had numerous requests from veterans to help them with their claims to get that ‘easy” disability compensation.

...................

Yep, and it puts me in a bad position... There's lots and lots of mythical claims, I'll certainly agree. Yes, I think that this does contribute to the overall problem. Yet I think the major reason is NOT undeserving claims, but understaffing, and I personally believe that the VA does this intentionally at the higher levels. I think its a consistent and common policy.

Needless to say, this pisses me off to no end, and we veterans wonder why evidence gets looked over. It seems that you have encounted your fair share of this also. A large part of it is you have VSR’s and RVSR’s trying to sort this crap out and having to go through a zillion pages of “evidence.”

....................

Me too, and you.. its funny what is deemed evidence by some.

Then, couple this with trying to meet the production quota to clear the backlog! Ultimately real evidence gets missed or lost! One has to remember, that VHA and VBA are two separate entities within VA and have actually nothing to do with each other except, as you noted above, administering C&P exams for ratings.

....................

Oh absolutely, I have little or NO problems with VHA really.

Like I’ve said in previous posts, there are good and bad doctors the world over and there is “misdocumentaion” of disabilities in both the private sector as well as VA. I suspect that the lack of training of the VA Physicians comes from the monsterous backlog of claims and C&P exams needed, and the individual VAMC’s don’t have the time nor the resources to implement specific training.

“I have handled DOZENS of claims where the vet received 40% for their lumbar spine and I was satisfied that was a fair rating”

It sounds like you’re receiving for the most part fair ratings for your claimants.

“I have one on my desk now. Yet they rated the guy at 30% for his left leg, with an AFO and complete loss of dorsi-flexion and severly reduced plantar flexion.... thats loss of use all day long, I'll file for it, and win it one shot one kill and I'd be more than willing to bet serious money on it since we have an EMG showing paralysis of the anterior tibialis nerve and common peroneal. I'll win at 50% not 30%, but the VA didn't offer to tell the vet they could even file the loss of use. Then hell also qualify for the adaptive vehile grant, possibly the adaptive housing as well, but will the VA mention it? Maybe, and its a slim one, maybe in his rating there will be one small section that briefly and vauguely covers it”

It looks like the VA already rated the loss of use at 30%. Are you saying you’re are going to file another claim for this???

...................

Yep, I'm going to file for loss of use due to loss of locomotion, and the "same as amputation" rule. I KNOW this one in and out. I'll get it for him, It's the same problem I had/have am having... lots of experience... its MY specialty area. Again, perhaps I wasn't clear, I'll get the 50% under loss of use, not pyramiding, though thats a valid point and would be absolutely correct if there wasnt sufficient evidence to prove loss of use.

As an experienced Vet rep, you should know that claiming both the Anterior tibial nerve (deep peroneal) and External popliteal nerve (common peroneal is pyriamiding and would only warrant the higher of the two evaluations! Furthermore, you won’t win a 50% evaluation, the highest evaluation DC, 8521 External popliteal nerve (common peroneal) is 40% and under DC 8523 Anterior tibial nerve is 30%!!!!! Now the issue is whether the veteran meets the criteria for loss of use and SMC (probably the ‘k’ award). Any RVSR or DRO will tell you determining SMC and their regulations are probably one of the most complex ratings to sort out. Maybe Rickb54 can lend his expertise in this matter, as I believ he has the "k" award for drop foot. I’m not up to speed with the SMC except for the ‘k’ award and the LOU of a creative organ. Or the ‘s” award regarding the 100+60 rule. As far as the adaptive housing grant, the basic requirement of this is “loss of use of BOTH lower extremities.”

...............

Except when a condition exsists that causes further imbalance or instability.... this can be anything from Minere's syndrom to partial paralysis of the other leg etc.

“I have personally handled and am currently handeling the claims for veterans who were shot in Vietnam, and received NO compensation for over 30 years. I'd have to talk to them, but if any one agrees than I'd be MORE than willing to let you verify this over the phone. No claim was ever filed for these guys and while they had received medical care from the VA for 30+ years, nobody ever told them they could file. They thought it was welfare”

Why is it VA’s fault if the veteran hasn’t claimed any disabilities incurred while in the service?

...................

Why sure, but then what are their responsibilities? What is their real purpose? I think that their purpose is to provide care and compensation, and if they are not informing service members or vets that they can file, then they are in fact dismissing an essential part of their "need".

The VA has a “duty to Assist” after the veteran has filed a claim, not before. Like I said, the VHA and VBA are two separate entities within VA and generally don’t communicate to one another except for the purpose of C&P exams ect…It isn’t VA’s fault that the veteran thought it was some type of welfare! The VA has been around in some way shape or form since before WWII. The mission of the VHA is to administer medical care to veteran that qualify for their service, not to make sure they file disability compensation claims with the RO’s.

................

I'm going to have to disagree with the above already said.

Am I missing something here, after all, I assume from your post, they were treated for their injuries after they returned from Vietnam.

..................

What does the VA regualtory guidance establish as their resposibilities? Since compensation is THEIR resposibility, both payment and determination... its part of their job.

And there’s my opinion! Oh, by the way, I never implied that some veteran was “Whining.”

...................

No you said bitch and moan I believe... 6 of one half a doxzen of another from where I sit.

However, if some deserving veteran wants to whine, then, of course they can, this is the good ole US of A.

Vike 17

[RockyA1911]

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?

[Berta]

I have it and I do see what you mean- on the Rating decision-

I dont see-however- on the Statement in Support of claim-dated 4/20/2006 where you raised the issue of CUE.

But the exhibits you listed (excellent job preparing all this-by the way-this vet listed the evidence as exhibits,described each piece of evidence, and got it all on the first page of the 21-4138- this is NOT what you will get from many vet reps who file generic 4138s.)

the exhibits are all from 1977.

I see your point of the CUE-

but I dont see where you specifically raised the CUE issue on the 1977 rating decision in the 4138-

Am I missing something?

Got pdf -rating decision May 02, 1977,21-526- Ex. A and A-2, and then the 4138- 4 pages.