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ptsd Evaluation Of Disability From Mental Disorders
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RockyA1911
Hey Vike, Berta, and all,
Below is the evaluation procedures for mental disorders. Note it states mental disorders and neurological deficits will be evaluated separately and then combined with the evaluation for mental disorders. It looks like the CFR standing alone means the VA can combine the rating for Post Concussion Residuals (Cognitive disorder, memory loss, etc, encephalopathy) with the mental disorder evaluation such as PTSD.
But the BVA decisions quote the same CFR and state they are distinct and separate and require separate rating evaluations:
It appears there is constant conflict in that the RO evaluation conforming to the CFR, but upon an appeal to BVA the mental and neurological deficits are then ordered separate evaluations.
Which is correct? The BVA decisions are the CFR as it is currently?
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents
Subpart B_Disability Ratings
Sec. 4.126 Evaluation of disability from mental disorders.
(a) When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric symptoms,
the length of remissions, and the veteran's capacity for adjustment
during periods of remission. The rating agency shall assign an
evaluation based on all the evidence of record that bears on
occupational and social impairment rather than solely on the examiner's
assessment of the level of disability at the moment of the examination.
( When evaluating the level of disability from a mental disorder,
the rating agency will consider the extent of social impairment, but
shall not assign an evaluation solely on the basis of social impairment.
© Delirium, dementia, and amnestic and other cognitive disorders
shall be evaluated under the general rating formula for mental
disorders; neurologic deficits or other impairments stemming from the
same etiology (e.g., a head injury) shall be evaluated separately and
combined with the evaluation for delirium, dementia, or amnestic or
other cognitive disorder (see Sec. 4.25).
The evaluation assigned for a service-connected disability is
established by comparing the manifestations indicated in the
recent medical reports with the criteria in the VA's Schedule for
Rating Disabilities. 38 C.F.R. Part 4 (1993). When there is a
question as to which of two evaluations should be applied, the
higher evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (1993).
Is the below in conflict with the CFR or is the CFR in conflict with this?
The Board will consider all applicable provisions of the VA's
Schedule for Rating Disabilities. Diagnostic Code 8045 provides
that for 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.
Alternatively, purely subjective complaints such as headaches,
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 9304
are not assignable in the absence of a diagnosis of multi-infarct
dementia associated with brain trauma. 38 C.F.R. Diagnostic Code
8045 (1993)
PTSD and Encephalopathy separately, according to the BVA but not the CFR but yet the BVA quotes the same CFR that says mental and neurological complications will be evaluated separately and then combined.
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.
http://www.va.gov/vetapp94/files2/9414656.txt
Again the BVA quotes the same CFR that states they can combine them, but rules they cannot be combined:
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.
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