ptsd Evaluation Of Disability From Mental Disorders

[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.

[Vike17]

Rocky,

Let me take another stab at this. O.k., you have claimed three disabilities that in some way, shape or form involve the head. They are PTSD, Skull loss, and post cuncussion syndrome due to brain trauma. PTDS is a mental disability, Shull Loss is a musculoskeletal disability, and post concussion syndrom is a neurological disability. All three have there own rating criteria

Rating cirteria for mental disabilities state;

§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 SS4.25).

(d) When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see SS4.14). (Authority: 38 U.S.C. 1155)

[53 FR 22, Jan. 4, 1988, as amended at 61 FR 52700, Oct. 8, 1996]

Rating criteria for neurological disabilities state;

§4.124a Schedule of ratings--neurological conditions and convulsive disorders.

With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves]

and specifically for post cuncussion syndrom (Iassume this is the Diagnostic Code VA used);

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.

The rating criteria for skull loss is;

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 in2 (7.355 cm2 )................................ 50

Area intermediate....................................................................

................................. 30

Area smaller than the size of a 25-cent piece

or 0.716 in2 (4.619 cm2 )...............................................................................

.. 10

Note: Rate separately for intracranial complications.

O.k., so now take away the skull loss out of the equation because that currently isn't at issue right now due to the fact it was deffered pending more development.

Now we come to, first, the mental disorder, PTSD. There it states; "When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition." The VA has done this because the "Physical" or musculoskeletal disability is the Skull loss (That's currently pending).

So, now we have the PTSD remaining along with the post concussion syndrom. In evaluating neurological disabilities it states; "Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule." Psychotic by definition according to Websters college dictionary is "characterized by or afflicted with psychosis." Psychosis by definition by the same source states "mental disorder charachterized by by symptoms, as delusions or hallucinations, that indicate impaired contact with reality." This means that if there is manifestations of a mental disability, it is to be rated seperately from the neurological condition.

Now the criteria for PTSD states; "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 SS4.25)" By definition a Cognitive disorder is "or or pertaining to the mental processes of perception, memory, judgment, and reasoning, as contrastedwith emotional and volitional processes." The question here is whether "cognitive" in this sense means mental disabilities in general as opposed to the specific cognitive disorders listed from DC's 9300 through 9327. If its the later, it means that if you have a disability diagnosed as let's say Dementia due to head trauma (DC 9304), then they would be evaluted seperately, then combined into one rating. If cognitive means mental disabilities in general, then that would call for PTSD also being evaluated seperately from post concussion syndrom and then combined into one rating. Having said this all, the criteria does state "When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition." This means when the have finished the deffered action on the skull loss, it is suppose to be evaluted seperately from the PTSD and then whichever rating results in the higher evaluation will be assigned.

From the looks of things, it all depends on what the meaning of cognitive and how it's suppose to be applied in the above paragraph. There is certainly alot of confusion as to what is right and wrong in this case. It might me easier if there was say only two disabilities, but you have three all stemming from the same bodily etoliogy and they are different conditions also. By this I mean one is a mental disability, one is musculoskeletal condition, and one is neurological. It probably would have been alot easier to sort out if you maybe had two musculoskeletal disabilities and one mental ect... not one from each catagory. In all honesty I can see how a RVSR or even a DRO wouldn't know what to do.

Vike 17

[RockyA1911]

Thanks Vike,

I realize the skull loss is an entirely separate issue and that it should and more than likely receive a separate evaluation.

The only thing the decision mentioned as far as combining was only the PCS and PTSD at 50% stating - Post concussion residuals, left temporal lobe contusion chronic WITH post-traumatic stress disorder. The head injury occurred in 1972 while in service on active duty and was determined line of duty.

Both the IMO psychiatrist diagnoses and the VA C&P examination report both stated problems with focus, memory loss, cognitive disorder due to service connected brain trauma, however, Mr. XXXXX has more problems with his PTSD symptoms than with his memory and they both stated "Flattened Effect" in their PTSD diagnosis. The IMO psychiatrist stated that Mr XXXXX

stating diagnosis of PTSD with GAF of 52 and that this is impacted by his traumatic brain injury.

The PTSD onset occurred due to my experiences in Vietnam from Apr 1968 to May 1969.

I understand that they can combine the mental and neurological deficits, but don't understand then why under appeal to the BVA, the BVA separates the two i.e. PCS and PTSD and PTSD and Encephalopathy and clearly rebutts the combination of the two and orders the two are separate distinct Diagnostic Codes PTSD is 9411, where PCS is proper under DC 8045-9304. Skull loss is evaluated separately and correctly under DC 5296.

With this recent decision they did award 10% for the post operative scar secondary to the PCS and listed it as a separate rating.

I don't think the skull loss defferrance at this point has any impact on the already combined PCS and PTSD rating of 50% as it is to be evlauated separate.

So the question still remains why is it the CFR is correct in combining the mental by a separate evaluation for neurological deficits and then combined with mental evaluation?

BUT, the BVA always determines they are separate and distinct even if it is the same etiology, and orders they receive separate evaluations and rating, but still reference the same CFR reg as above.

I guess the question is the CFR is correct as far as the RO following the rules. But yet the BVA says the ROs always broke the rules when combining the PCS and PTSD are separate even if it is the same injury and etiology.

That is where my confusion lays, not with the pending skull loss as it will not be combined with other intracranial complications.

My previous PCS awarded 10% in 1976 was under 8045-9304 and since PTSD is DC 9411. What DC codes would the hyphenated together when I had before and still have the 8045 -9304. How do they add the DC 9411 when the BVA determines that is a violation?

I'm just trying to understand why if the biggest problem according to the doctors is PTSD, and not the mere 10% PCS residuals under 8045-9411? Since "Flattened Effect" was in the reported symptoms of PTSD that warrants a rating of 50%, I would thing since PTSD being the highest rated condition that PTSD would come first with PCS residuals being second. Am I wrong?

I actually only claimed one new mental (PTSD) condition, and an increase in current 10%PCS residuals (memory loss, cognitive disorder) under 8045-9304, and PTSD was a new claim.

The skull loss had been claimed in 1976 and I claimed it with retro back to 1976 because the skull loss remained unadjudicated.

Edited January 20, 2007 by RockyA1911

[Vike17]

Rocky,

I think I've finally figured this out after reading your rating decison you PMed me. O.k., according to your C&P exam you exibit little to no symptoms from your post concussion residual except "except for your reports of decreased sensation to light touch and pin prick on the entire right side of your face from your forehead through your neck back to your skull." The examnotes that you don't have any subjective complaints of headaches or "cerebellar dysfunction was detected and strength in your upper and lower extremities is shown as normal with normal gait." Therefore, warrenting either a 0% or 10%.

Remeber what I posted in my first post, the criteria for the Post Cuncussion syndrom, there it states if there is even subject complaints as far as symptoms for this condition it "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." Thereby, virtue of the rating criteria at this level for Post Cuncussion syndrom with DC 8045, you'll be assigned DC 9304, meaning then you have two mental disabilities and, therefore, must be rated for the one that represents the higher rating (DC 9304 at 0% or 10% and DC 9411 (PTSD) at 50%) for a rating of 50%. According to your symptoms of PTSD and the C&P exam, they warrant a 50% evaluation.

Does this make sense. After I read the complete rating decision, now it makes sense to me. Because of the rating criteria up to 10% at DC 8045, which says that the VA must then rate you under DC 9304, which is incidently Dementia due to head trauma. The reason behinds this is I suspect that the subjective symptoms asociated with DC 8045 are the same as and represent a mental disability, more specifically Dementia due to head trauma.

Vike 17

[RockyA1911]

Whew! Good and I agree with most of that and now that you understand the case too we're on the same page.

You basically said the same thing I did about the 10% post concussion residuals and since it was already 10%, I filed for an increase in DC 8045-9304 that already existed as a separate complication which it had been since 1976. And that was the only compensation received 10%, one disability.

I had filed for PTSD as a separate issue also in March 05. Since you do agree the PTSD should be 50% and they left the PCS the same at 10% why isn't the higher of the two evaluations (PTSD at 50%) considered the main disability and listed as PTSD and PCS with DC 9411 coming first?

Second question is how does my complications differ from these BVA decisions ordering that these be separate disabilities? I ask this because these cases just about mirror mine identically with the exception of the cause of injury:

1) PTSD and PCS: 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.

2) PTSD and ENCEPHALOPATHY: Same as above. The recent VA exams MRI, EEG, and X-Ray furnished with claim reported Post Operative Post Traumatic Encephalopathy due to service-connected traumatic head injury.

3) Skull Loss separate (and mine is a lot larger than this vets): Entitlement to an earlier effective date than November 5,

1999, for a 50 percent rating for residual skull loss from a

shell fragment wound, to include on the basis of clear and

unmistakable error (CUE). 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.

How does my claim for EED and service connection for skull loss and combined PCS with PTSD differ? I'm just trying to get to what is good for the goose is good for the gander and the differences from my claim versus these decisions.

[Vike17]

Rocky,

Ifyour Post cocussion residuals warranted a rating at 20% or higher under the appropriate "diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207)," then you would have received seperate ratings. However, since the rating criteria for 10% and lower under 8045 requires that the Post Concussion residulas be reverted to DC 9304 because the symptoms are essentially that of a mental disability.

Furtermore, the BVA citation reads "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" Also, I noticed that the BVA was quoting a 1993 citation out of the rating schedule. This may have ghad an affect on the decision from BVA, depending on when the the claim was filed and the subsequent effective date. Like I said before, BVA decisions are based on that individual claim and does set any kind of precendence. From the way that decision is worded, it wouldn't suprise me if the current rating criteria which I quoted came into being sometime after 1993 because of decisons as these.

Does this make sense?

Vike 17

[RockyA1911]

Vike17,

Something has got to be fishy then. My previous rating of Rating Decision dated April 1977 has both of the DCs and hyphenated since effective date of Nov 1976 was assigned both as 8045-9304. It was not "or", it was just like this "DC 8045-9304. There are no DCs in the recent decision at all. So what DC would the give to the PCS with PTSD?

In May of 06 I had submitted as an "Additional claim" for organic post-traumatic Encephalopathy secondary to service-connected head injury. As support of claim I submitted that:

Exhibit A: Merriam-Webster Medical Dictionary definition of Encephalopathy is "a disease of the brain; escpecially one involving alterations of brain structure."

Exhibit B: Merriam-Webster Medical Dictionary definition of Encephalomalacia is "softening of the brain due to degenerative changes in nervous tissue (as in crazy chick disease).

Exhibit C: Follow-up VA Neurology consult in May of 06 EEG and MRI findings: "At the left tempoaral lobe predominately in the middle gyrus and partially in the superior gyrus posteriorly is abnormal signal with some susceptability artifact consistant with old blood, likely related to patient's known prior history of trauma. IMPRESSION: Old encephalomalacia and post traumatic changes in the left temporal lobe as described above. Mildly abnormal EEG for the awake and drowsy state showing occasional theta slowing in the left mid-temporal area. A breach rhythm is also in the same area. These findings show focal cerebral dysfunction. No epileptiform activitiy was noted." DIAGNOSIS: 1) Post-Traumatic Encephalopathy, this is (more probable than not) as a result of the head injury in 1972 (chronic encephalomalacia seen on MRI). 2) "Spells", cannot r/o simple partial seizures, but treatment with PHT in past was ineffective and description is vague."

Exhibit D: Proof of cognitive impairments from VA Neuropsychological Evaluation Jan 06. "Clear evidence of cognitive impairments are present, particularly in situations requiring problem solving, attention, and some visual motor skills. In social and employment settings, he is expected to be severely comprimised.

Exhibit E: Pyschiatrist Dr. XXXXXX diagnosis letter dated April 05 states: "Mr XXXXX is disabled and unemployable as a result of his condition."

Exhibit F: Proof of entitlement to service connection for post traumatic encephalopathy as separate condition related to already service connected head injury. USCOVA NO 98-934, 10 Feb 2000 and BVA citation Nr. 9930148, Docket NO 94-41 060 29 Oct 1999.

The April 1977 10% under DCs 8045-9304 rating decision was based on "absence of any objective findings." Both the psychiatrist, Neuropsychologist, and Neurologist have all told me that there IS NOW objective findings and that Neuropsychologist did not exist back in 1977 and that the EEG in 1977 HAD TO HAVE BEEN MISINTERPRETED.

So Vike, it appears to me they picked and choosed which sentences in the medical reports and ignored the above one. They had to have read it because they used them as references and quoted some of the sentences to suit their needs, but as you can see there is nothing in the decision addressing Encephalopathy or even the EEGs and MRIs and nowhere in these reports does it say my current EEG is essentially normal, I posted what the report said above. That is from the 1977 EEG.

So, should I not have been awarded a separate rating for the Encephalopathy which is an organic brain disease, not a mental condition, but contributes to the mental conditions such as Cognitive Disorder and Memory loss. They all tied the memory loss and cognitive disorder to the Head Injury. 5 consults and tests with the neuropsychologist stated it was due to the head injury and the only mention of PTSD in her report is "Symptoms of PTSD are present" and that is all, the VA C&P Examiner stated the same thing in her report.

How could they not have addressed this and awarded a separate rating then? I would assume this to be at least 20%.

It seems they put more weight on a C&P exam dated 11 July 2005 even though it stated "I also believe that it is more likely than not that the veteran has problems with his memory and his interaction with other secondary to his service connected brain trauma and left temporal lobe contusion. However, the brief evaluation I was able to do today showed very inconsitent results. To get a full picture of how much this impacts his daily life, I believe he would need full neuropsychiatric testing, which I have recommended he pursue." She requested full NP testing.

The NP testing appointment wasn't until Dec 05 and lasted thru middle of Jan 2006 with report end of January 06. The NP request an appointment for Neurology exam and consult that didn't happen until Feb and Mar 06 with report of EEG, MRI, and X-RAYs and diagnosis furnished in April of 06.

It is evident the C&P examiner in July 05 knew there was a cognitive disorder due to brain trauma but did not know the extent or severity at that time. Neither did she have in her possession the NP evaluation report, nor recent EEG, MRI, X-Ray results, nor the neurologists diagnosis.

Edited January 21, 2007 by RockyA1911