Cue Versus Regular Claim For Disability Comp

[RockyA1911]

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.

[RockyA1911]

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.

Edited January 12, 2007 by RockyA1911

[Vike17]

Rocky,

When you receive the actual rating, which I assume shouldn't be too much longer, post it here or PM a copy and I'll see if I can't try and sort this out.

I'm not trying to defend VA or anything, but something doesn't sound right. For a RVSR to miss something this obvious doesn't happen that often. I mean, does it happen sometimes? Sure, you bet it does. However, for them to be overlooking something that would be this obvious for the second time, makes me wonder if there isn't something more to this than what has been decided.

Vike 17