ptsd Must Separate Ptsd And Concussion Residuals

[RockyA1911]

I know this is JUST a BVA decision, but do they not consider the legal statements pertaining to the regs, where they point to the reg and violation when it comes to mixing and matching different diagnostic codes?

Here is the excerpt I am talking about:

BVA9414656

Upon review of the evidence, the Board finds that the veteran

should receive separate disability ratings for service-connected

PTSD and his service-connected residuals of concussion,

identified as encephalopathy and dementia. While the PTSD and

the concussion (physical trauma to the brain) may have resulted

from the same incident, i.e., a mortar explosion, each is a

distinct entity which warrants a separate disability rating under

different Diagnostic Codes in the VA schedule for rating

disabilities. See 38 C.F.R. Part 4 (1993). In this regard, the

Board notes that PTSD is rated under Diagnostic Code 9411, while

the residuals of physical trauma to the brain, in this case, may

properly be rated under Diagnostic Codes 8045 or 9304.

I don't for the life of me understand just because it is illegal or wrong to combine DC 9411 and DCs 8045-9304 together for evaluation for one veteran, but the same rule doesn't apply also to myself or any other veteran that the VA has combined their PTSD with Post Concussion Residuals.

How could this be used as a defense to get the VA to provide separate ratings.

It makes a real difference if a combined evaluation is 50%, but is supposed to be two separate evaluations at 50% each, i.e. 50% combined versus 75% rounded to 80% for correctly separating the two.

Am I wrong here?

[Guest jangrin]

Rocky,

Have you decided whether you are going to file an appeal to the BVA or are you asking for a DRO hearing or are you going to ask for a reconsideration?

I would get the entire BVA decision on that case, highlight in the discussion and decision everything that applies to your situation and submit it as new evidense for your claim. I would think that you could submit that as new evidense even for a reconsideration. But for sure as I read this it applies to your situation.

I think the problem here is if they give you seperate ratings (like their suppose to) they will have to give you retro back to the 70's. OOoops that could be alot of money and the VSR who rates that will be under scrutiny for sure. I certainly am not an expert, but the way I understand it this supports your claim.

Don't give Up...

Jangrin

Edited January 19, 2007 by jangrin

[RockyA1911]

Hey Jangrin,

Yes, if they increased the Post Concussion Residuals, due to brain trauma, I think they would have to pay me some retro on that by itself. In their decision later where they state what would be needed for a 70% evaluation under PTSD they listed flattened effect, suicide ideation, etc.

The actual civilian psychiatrist listed those two as symptoms of my PTSD, but they did not detail the psychiatrists diagnosis and symptoms. Just that there was a diagnosis of PTSD by Dr XXX XXXXX and the date of the diagnosis letter. So I should have gotten 70% for PTSD and previous PCS residuals an increase of 30% due to encephalopathy of which is an organic brain disease (dead tissue and tissue loss). The thing is I have had the encephalopathy due to the post operative residuals of the TBI from the beginning and was documented by the military service medical evaluations, along with EEGs over two years later still showing "A clear focal slowing in the left parietal area." The neurologist at the VAMC last year confirmed the same thing and told me as did the Neuropsychologist consult that the EEG the VA did back in 1977 was definitely misinterpreted. So the condition existed immediately post surgery, all through active military service and then after discharge and filing a claim, the VAs EEG at that time stated the EEG was essentially normal.

My brain didn't grow new matter and correct itself just for the VA examination in 1977. That kind of thing, Post traumatic encelphalopathy due to TBI just don't go away and come back, it is permanent and gradually gets worse, more loss of brain tissue.

I'm not doing anything right now, just awaiting the rest of the decision for the pending retro skull loss and IU decisions. When I get those I will know which way to go. But, I am leaning toward the reconsideration using new information to support my contention that the PCS and PTSD are rated separately and the PCS rated separately based on the encephalopathy where the VAMC neurologists stated there is post-traumatic encephalopathy more likely than not due to Service connected TBI. The RO had this VA neurologists opinion regarding the encephalopathy.

Just cooling my heels, but still planning the future battle and trying to get the ducks in a row.

[Guest jangrin]

Rocky,

I think I would initially go for the reconsideration with the new evidence and have the case reviewed for correctness. That might be the fastest resolution to having your claim properly rated. If that didn't work then i think you need to go to the BVA because your evidence is from a ruling of that court.

That BVA case you found really sounds like it is what you needed for your claim. Good Luck Rocky, but still check with Tbird, John999, Berta, Vike 17, Terry, Pete, JBasser,Carlie,(and the rest), you know the elders they have the most experience and they might even be able to find even more BVA or CAVC casses that could additionally help.