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.

[RockyA1911]

Vike,

Question. If I sent them a recent 2006 BVA decision http://www.va.gov/vetapp06/files3/0610575.txt

CUE that awarded 50% for 3.3cm x 3.3cm and earlier effective date to Dec 1968 as new evidence in support of the skull loss claim? Would that be considered new evidence?

Is not an "undebatable" error in the CFR regulation a CUE? Especially as far fetched where 7.355cm is not even remotely the equivalent conversion to 1.140 inches, and the correct conversion equivalent is actually 2.90 cm.

Due to the math conversion in the CFR it unfairly wrongs veterans in that a skull loss size of 4.5cm x4.5cm equivalent to 1.770 inches, clearly warranting the 50% threshold when comparing in inches cannot even meet the 10% rating in centimeters.

Isn't an error such as this considered a CUE because there would have been a manifestly different outcome for the veteran if they corrected the math conversion?

[RockyA1911]

Wow! I was the one that made the error by just converting inches into centimeters. The evaluation schedule is correct! Everything is to be converted from square inches to square centimeters. So figuring correctly I should have taken the square root of 1.140 inches (1.068) and then multiplied it by 2.54 (2.71 cm) and the result squared again which equals the 7.355 cm2. I know this comes out to be 7.349cm2 but I dropped the 13 plus extra digits to the right of the decimal. It correctly comes out to 7.355cm2. My BAD! Good thing I didn't sent the correction request out and I won't. So the schedule is correct!

I showed it to a electrical engineer and he took one look at the previous post and told me of the error I made in conversion and the schedule was right.

Still according to the rating schedule I should still receive the maximum without brain hernia of 50% with 4.5cm x 4.5cm skull loss both inner and outer tables.

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\).............................................

(my 4.5cm x 4.5 cm verified skull loss is “3.13 in \2\ (20.25cm \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.

Edited January 16, 2007 by RockyA1911

[Berta]

Gee-Rocky- guess they did do this right-

thanks for telling us- I never checked the conversionfigures myself----this shows how we should pay attention to all these details-

you could have been right veteran----

they do make mistakes-----