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.

[Vike17]

Rocky,

Sorry your thread got high jacked! This wasn't my intention. This will be my last post to Sixthscense in this thread.

Sixtsense,

“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 wasn’t referring to rating such as you indicated. I was suggesting claims that would be appealed based on absolutely no merit. Furthermore, a DRO CANNOT reduce a rating when it comes before them on appeal unless it constitutes CUE on VA’s part. They can only decide to keep the rating percentage as it was or elect to raise it.

“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”

To a certain extent it is the veterans fault. By this I mean when veterans keep filing for everything imaginable that has absolutely nothing to do with there military service to try and get a piece of the disability compensation pie.

“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”

Take a look at the regulation I referenced and you posted, it states; “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” Furthermore, VA Manual M21-1MR, Part III, Subpart V, §19(d) states; “A line-of-duty determination is not required in the following cases…a service department makes a formal or informal determination that a disability or death was incurred in the line-of-duty. Accept service department findings as conclusive for VA purposes, unless there is overwhelming evidence of willful misconduct”

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

You didn’t state this in your previous post, that’s why I brought the generally criteria up for this!

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

Neither was I, the regulation has nothingto with ratings, it applies to permitting service-connection for such injuries.

“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”

It certainly is one of the major problems contributing to the backlog. The VA isn’t doing this at the higher levels. The VA higher-ups would like nothing better than have the backlog go away. For most VA employees this is also true. A bid driving force within VA is production bonuses i.e. working so many claims within a certain time period. So for the average RVSR/DRO they would love to see the back log go away so it would be easer for there production quotas go down. This is the same for the VSM’s. If there RO is running behind they ultimately do receive bonus and promotions either. So, even the VA higher up hate the back log. Congress is at fault for not fully funding VA so they can do something about the backlog!

“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”

I have no idea how you come up with 50% unless the veteran has other rated disabilities. You didn’t mention this in your prior post, so I assumed the veteran didn’t.

DC 8521 External popliteal nerve (common peroneal at 40% states; “Complete; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes”A 40% evaluation is the highest evaluation allowed.

Under DC 8523 Anterior tibial nerve (deep peroneal at 30%, which is also the highest evaluation, states, “Complete; dorsal flexion of foot lost” there is no 50% rating.

Furthermore, according to §3.350(f)(2)(vii)(B), it states;

“Service-connected loss or loss of use of one foot which by itself or in combination with another compensable disability would be ratable at 50 percent or more, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or, if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o); or Service-connected loss or loss of use of one foot which is ratable at less than 50 percent and which is the only compensable disability other than bilateral blindness, will afford entitlement to the next higher intermediate rate or, if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o). (Authority: 38 U.S.C. 1114(p))”

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

Yea, once the veteran has submitted some type of claim, then their responsibility becomes determination and payment. Do you think the VA should tie up more manpower and money so they can get hold of the over 26 million veterans to see if each an every one of them should file a disability compensation claim?

I am happy that I was able to give you some information that may help you in your advocacy to help veterans in the future. Maybe will have to agree to disagree on some points!

Vike 17

Edited January 9, 2007 by Vike17

[RockyA1911]

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?

[RockyA1911]

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.

[Berta]

I have had lots of problems posting myself this AM and I think it is due to the snow we are getting-

OK- this to me is a CUE claim-and hopefully they will address this in the decision letter-

then again- the way they breeze over stuff- it might take filing this again-

separate from everything else - as a formal CUE-

I will try to attach one of my formal CUE claims-

it will show you the format I used.

it might take time -my modem is flickering from the weather I guess---

[sixthscents]

Rocky,

I also owe you an apology. I allowed my own interests to sway my conversation away from your topic. I apologize. I think that Vike 17 made some VERY good points, even if I disagreed with him on several others, but... they simply didn't have a whole lot to do with YOUR topic. I started the thing with my "taking exception" to a post by Vike, but that does not excuse my behavior. I will attempt to direct anything similar in the future into either a new topic, or into the advocacy area etc.

Vike 17, I did not provide some of the information you commented upon so I can see how you would make some of the assumtions you did. In any case, I will try and redirect any future differences of opinion away into the advocacy area. I think you have a lot that I can learn from, and I am ALWAYS looking for a different perspective...

Rocky, Vike 17 and all of you, I will say that while I may totally believe a Vets claim, someone who plays the Devils Advocate and looks at the claim thru skeptical eyes can only give you information on how to make the basic claim stronger. They can point out weaknesses in the testing, diagnosis etc. I think that its a VITAL part of the development of a decent claim. So, while I may disagree with someones opinion, I do not take it personally in most instances.

In any case, again I apologize to Rocky and the others who were commenting upon his topic. It was thoughtless and wont happen again.

[john999]

I think it is important to state that your CUE claim is not a claim or request for Reconsideration. Terry explained why. You have to spell everything out to the VA in spades or they either misinterpret it or ignore it. I even got a VCAA on my CUE claim and according to the rules I should not have gotten such a letter. I filed my CUE with the RO so you know they really don't know what they are doing and I expect a denial regardless of the merits of the claim.