May Have Discovered Skull Loss Problem In Cfr 38

[RockyA1911]

I might have discovered something that may have to do why I have not been awarded skull loss at the VARO twice over 30+ years. The math is totally off as you can see below in the extract from CFR 38,4, 4.71a under diagnostic code 5296. They somehow can't do the math for converting metric to inches and vice versa.

My skull loss is 4.5 x 4.5 centimeters which is equal to 1.77 x 1.77 inches.

Correct conversion of inches to metric:

1.140 inches is equal to 2.90 centimeters which is larger than a 50 cent piece. CFR is in error as it is not 7.355cm.

1.0 inch is equal to 2.54 centimeters.

Under the provisions of Diagnostic Code 5296, loss of part of

the skull with brain hernia warrants an 80 percent

evaluation. A 50 percent evaluation is the highest rating

available when there is loss of part of the skull without

brain hernia. A 50 percent evaluation contemplates an area

larger than size of a 50-cent piece or 1.140 in2 (7.355

cm2). Intracranial complications are rated separately.

38 C.F.R. Part 4.

Sec. 4.71a Schedule of ratings--musculoskeletal system.

The Skull

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

Rating

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

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\ 50

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

Area intermediate........................................... 30

Area smaller than the size of a 25-cent piece or 0.716 in 10

\2\ (4.619 cm \2\).........................................

Note: Rate separately for intracranial complications.

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

http://a257.g.akamaitech.net/7/257/2422/12.../38cfr4.71a.htm

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 inches.

This must be why there are so many VBA and COVA decision awarding the correct rating for skull loss. Here is a vet's case

"The assignment of an effective date earlier than February 17, 1989, for a grant of service connection for

skull loss, residuals of a ventriculostomy, is granted." http://www.va.gov/vetapp92/files2/9210110.txt

The incorrect math reflected in the CFR must be the reason a lot of VAROs deny skull loss claims erroneously. I sent a request last year to the GPO informing them of this error in the CFR but nothing ever happened.

As you see the 10% evaluation in the CFR shows the conversion to metric to be 4.619cm for size of a 25 cent piece and my loss is 4.5cm x 4.5cm. So it could be the RSVRs might have figured that the 4.5cm was less than 4.619cm so therefore they might service connect the skull loss this time but with 0% rating based on the erroneous math conversions.

When in reality, 4.5cm x 4.5cm is equal to 1.77 x 1.77 inches and warrants a 50% rating.

[Guest jangrin]

Hey Rocky,

Wasn't there something about inches and metric a while back about the landrover and Mars???? If the scientist can't convert their metric then why would we expect the VA to be able to?

I think your onto something here. Now what to do about it?

Maybe someone here on the board could help get this to someone with some clout.

Jangrin

[Berta]

Great Job Rocky!- it makes sense to me-what you are saying-

if I were you I would ask them for a Reconsideration of the decisioh that denied this again and tell them exactly what you stated here-

it might be good to even attach a metric conversion chart-

this site might help:

http://www.sciencemadesimple.com/conversions.html

Men and women we have to READ everything real good.

I think it is easy to get stimatized by our own records-

pays to take abreak or even get a third party's opinion-

all this time-they were not evaluating Rocky's skull loss claim wrong and I think he figured out exactly why.

These little details can be the difference in a rating!

I got email from one of my vet orgs last month where they had a widow who claimed her husband lost so much blood during a VA surgerical procedure that the VA caused his death due to blood loss.

I think someone here commented on this too- she was reading the volume of blood loss totally incorrectly-

thought it said 8 pints but it really said something much different and I think someone at hadit pointed out to me the error she made.

The most unobvious detail can be the predominate factor in a claim sometimes.

Even one word- I had a vet and met him after he had bee denied numerous times and was at the CAVC on remand to the BVA-then back to the VARO- 12 years of this.

My former vet rep asked me to help him-he needed to establish his nexus-

it was right in the first paragraph of his latest BVA decision.

The VA had consistently stated that his SMRs were silent for diabetes.(not AO vet)

I needed to find manifestations of diabetes in his SMRs-

the BVA stated that he had been diagnosed with a drusen in service.

and went on to say there was no nexus or inservice documentation of diabetes.

Drusen did it! I looked it up, pulled out the VA training letter on diabetes and found that this is a macular degeneration that is most often due to diabetes.

Then I spent a whole weekend going over his SMRs and -as I mentioned before- I had to blow some of them up to read them-this can even help ay vet trying to understand an entry if they blow up the page on their scanner.

I found numerous symptoms he showed in documented trips to the medics in service of diabetes.

All this time he was never advised by his vet rep to get an IMO-and no one (he should have done this too) ever looked up what the word drusen meant.

He then got a free IMO from his private diabetes doctor who could refer easily to his SMRs and to the drusen as to the symptoms- in service- of diabetes.And got a big retro check.

Also if something in a med rec is circled or crossed out , it pays to study that entry carefully and also to do all you can to figure out the gibberish of handwritten notes.

Rocky- I could understand your frustration and this can support the CUE claim too- as you sure found a smoking gun-and I commend you for doing this.

A Reconsideration request does not stop the time to file a NOD- but if you file for the Recon request-mark your calendar and then if they haven't decided this request as the NOD time comes close-you can file a NOD-

then again this is not only a good basis for reconsideration but it highlights your point well in the CUE claim-

Great work veteran-great work!

[RockyA1911]

Reconsideration? I doubt if the RSVR would even read it Berta or even look at a metric conversion chart. I used the same chart that you provided the link on too! I've been doing my homework and have come across many decisions where the VARO combined the vets skull loss in with a intracranial condition which is a no, no. The DC for skull loss explicitly states that it will not be combined with intracranial conditions for rating.

However Berta and Vike, take a look at this BVA decision involving CUE and entitlement to a 50% rating for skull loss. This vet has a 3cm x 3cm skull loss and is a recent 2006 decision. Not only did the BVA acknowledge the CUE and separate rating for skull loss, they awarded the 50% compensation on the spot along with earlier effective date back to DECEMBER 1968!

"Given the evidence cited above in light of the testimony

presented to the undersigned, and considering the

unlikelihood of any increase in the size of the area affected

in the many years since the in-service injury, the Board

finds that is was "undebatable" that the evidence at the

time of the January 1969 rating decision demonstrated that

the service connected skull wound affected an area of at

least 3 cm. As such, the Board finds that reasonable minds

could only conclude that the evidence of record at time of

the January 1969 rating decision compelled a conclusion that

a 50 percent rating for the veteran's skull wound was

warranted under 38 C.F.R. § 4.71a, DC 5296 (1969). Thus, the

January 1969 rating action may be viewed for the purposes of

this adjudication was flawed at the time it was made, and was

the product of CUE. As such, the criteria for a 50 percent

rating for residual skull loss from a shell fragment wound

effective from December 21, 1968, are met. 38 C.F.R. § 3.400(k) (The effective date to be assigned for

an award based on CUE is that date from which benefits would

have been payable if the correct decision had been made on

the date of the decision found to have been the product of

CUE).

ORDER

A 50 percent rating for residual skull loss from a shell

fragment wound is granted effective from December 21, 1968,

subject to the regulations governing the award of monetary

benefits.

http://www.va.gov/vetapp06/files3/0610575.txt

I don't know what can be done to correct this error in the CFR 38, 4, 4.71a DC 5296. When I contacted the VA last year they said I had to send a letter to the Government Printing Office describing the error and providing the correction. I did that and never heard a thing or have seen any change.

There are tons of vets out there that are unaware that their skull loss is to be evaluated separately under DC 5296 and is not to be combined with intracranial conditions. There are also tons that have been denied, even though they warrant a 50% rating. This is bureaucratic BS at it's finest.

[Guest jangrin]

Rocky,

You won't believe what I found today. I was actually looking for training manuels but I found this tucked away in the VA WEB SITE.

Maybe someone here could help you with an expert statement in support of your claim.

http://www.hsrd.houston.med.va.gov/research.htm

Just reading the VA info.

Jangrin B)

Edited January 13, 2007 by jangrin

[Objee]

I might have discovered something that may have to do why I have not been awarded skull loss at the VARO twice over 30+ years. The math is totally off as you can see below in the extract from CFR 38,4, 4.71a under diagnostic code 5296. They somehow can't do the math for converting metric to inches and vice versa.

My skull loss is 4.5 x 4.5 centimeters which is equal to 1.77 x 1.77 inches.

Correct conversion of inches to metric:

1.140 inches is equal to 2.90 centimeters which is larger than a 50 cent piece. CFR is in error as it is not 7.355cm.

1.0 inch is equal to 2.54 centimeters.

Under the provisions of Diagnostic Code 5296, loss of part of

the skull with brain hernia warrants an 80 percent

evaluation. A 50 percent evaluation is the highest rating

available when there is loss of part of the skull without

brain hernia. A 50 percent evaluation contemplates an area

larger than size of a 50-cent piece or 1.140 in2 (7.355

cm2). Intracranial complications are rated separately.

38 C.F.R. Part 4.

Sec. 4.71a Schedule of ratings--musculoskeletal system.

The Skull

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

Rating

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

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\ 50

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

Area intermediate........................................... 30

Area smaller than the size of a 25-cent piece or 0.716 in 10

\2\ (4.619 cm \2\).........................................

Note: Rate separately for intracranial complications.

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

http://a257.g.akamaitech.net/7/257/2422/12.../38cfr4.71a.htm

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 inches.

This must be why there are so many VBA and COVA decision awarding the correct rating for skull loss. Here is a vet's case

"The assignment of an effective date earlier than February 17, 1989, for a grant of service connection for

skull loss, residuals of a ventriculostomy, is granted." http://www.va.gov/vetapp92/files2/9210110.txt

The incorrect math reflected in the CFR must be the reason a lot of VAROs deny skull loss claims erroneously. I sent a request last year to the GPO informing them of this error in the CFR but nothing ever happened.

As you see the 10% evaluation in the CFR shows the conversion to metric to be 4.619cm for size of a 25 cent piece and my loss is 4.5cm x 4.5cm. So it could be the RSVRs might have figured that the 4.5cm was less than 4.619cm so therefore they might service connect the skull loss this time but with 0% rating based on the erroneous math conversions.

When in reality, 4.5cm x 4.5cm is equal to 1.77 x 1.77 inches and warrants a 50% rating.

Rocky,

Mail your conversion info to the new chairs of the House and Senate committees on veterans affairs.

HAND WRITE along the margin of the letter that "This is an egregious error in VA adjudication."

Be sure to say that the GPO needs to correct this.

The hand written comment signals that this isn't "just another letter."

Great job, veteran!!

Ralph

[Vike17]

Actually this wouldn't warrant a request for reconsideration. A "reconsideration" can only be given if the evidence is "new" and was not before the decision maker at the time of their prior desicion. This isn't new evidence, it's actually a disagreement of how the regulation is interpreted, which would call for a Notice of Disagreement (NOD). I also suspect, if indeed this is the actual conversion, this would have to be resolved by the Director of Compensation and Pensions in Washington, D.C., as they are the ones authorized to make such changes to the rating schedule. I was always under the impression that the conversion was always 1" equals 2.56 cm's B)

Vike 17