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,

You said;

"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"

There isn't anything fishy going on. You previous rating in 1977 was based on the rating criteria at that time. The rating schedule may have had that in place in 1977, I don't know, you would have to find the rating criteria from back then. Like I said in a previuos post to you, if you take a look at the rating schedule, you'll notice down at the bottom is the dates it was ammended. I suspect they would either hyphenate the DC's as they did eailer or, since the PTSD is he most disabiling condition it may be hyphenated with that. §4.27 states;

"The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded “5002–5240.” In this way, the exact source of each rating can be easily identified. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease."

You also said;

"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"

I don't get what you are trying to accomplish. You already claimed an increase in you post concussion syndrome and have the issue of skull loss in there too, which is 'organic' in nature. Remember, you are being paid compensation for the residuals of an injury or disease to a particular bodily etoliogy, not the numder of injuries or diagnosis to that bodily etoliogy. This where the whole thing with pyramigding comes in.

"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.

From reading your C&P exam, it looks like to me there was no subjective complaints 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," which are symptomatic of brain trauma. Who misinterpreted the EEG, the doctor? That's not on the rater, they're just going by what was writen in the report. I don't understand what you're trying to get at. Are you saying that the "absence of any objective findings" from 1977 were flat out wrong, or are you saying the doctors told you that your disability has now progressed since 1977 to the point you now have objective findings to support a higher rating than the 10% assigned recently? If it's the fomer, you shouls have appelaed the decision if you felt you were given a unfair rating back then. If it's the latter the EEG and MRI findings from May 06 also show symptoms of a 10% evaluation ("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") It appears the evidence in this case do warrant a 10% rating. They didn't pick and choose as you think they did. The report from 1977 is actually irrelavent, because a claim for increase is based on the current findings, not 30 years ago! As I said before, from the C&P exam and the EEG and MRI from May, 2006, the sypmtoms and objective findings (i.e. the MRI and EEG study) are consistent with a 10% evaluation.

"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"

Like I said above Encephalopathy is an organic disability as is the skull loss. The skull loss has been deferred and will in all likelyhood be a moot point because the skull loss would probaly warrant the higher rating. One can argue that Encephalopathy may contribute to symptoms associated with mental and nuerological disablities also, but you are also being compensated for those residuals too. This kind of like IVDS and scoliosis. Scoliosis is a disability iand of itself but it must also be "lumped" together with the more disablity back disability due to the rules surrounding pyramiding.

"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"

Like I said above the Objective finding from the May, 2006 studies also coincide with the C&P exam

"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"

I assume these reports was the May, 2006, EEG amd MRI results we have been discussing. If so, they support the C&P exam.

Vike 17

[RockyA1911]

Who misinterpreted the EEG, the doctor? That's not on the rater, they're just going by what was writen in the report. I don't understand what you're trying to get at. Are you saying that the "absence of any objective findings" from 1977 were flat out wrong, or are you saying the doctors told you that your disability has now progressed since 1977 to the point you now have objective findings to support a higher rating than the 10% assigned recently? If it's the fomer, you shouls have appelaed the decision if you felt you were given a unfair rating back then. If it's the latter the EEG and MRI findings from May 06 also show symptoms of a 10% evaluation

Yes, the VA EEG and abscence of any objective findings in 1977 were flat out wrong. The conclusion that it had to have been misinterpreted was by my current VA NP and the Neurologist.

They came to that conclusion and explained to me that there was no way that the EEG in 1977 could have interpreted it as EEG essentially normal. Because immediately post-operative a Navy Medical Board reported finding of Abnormal EEG with a new evaluation in 6 months which again another Medical Board finding was Abnormal EEG and directed another 6 months of which the 3rd and final Medical Board finding reported again Abnormal EEG with clear focal slowing in the left parietal area. So they are saying the 1977 had to be error by whoever interpreted it at the VA because the abnormality and clear focal slowing was present in 1973. The VA did an EEG in 1977 and found no evidence and that the EEG was essentially normal. Here it is in 2006 the VA EEG reports the same abnormality with clear focal slowing. They are saying this condition doesn't come, go, and then come back and that I clearly have always had it since post operative.

Like I said previously they didn't even have such a thing as a Neuropsychologist it was a new specialty since then, back then I don't think even MRI to detect the encephalopathy.

Yes I should have appealed, your're right. At the time I was young, scared of the VA, and didn't even know what or why I should appeal anything in the rating decision. I did call them about why they didn't give me anything for the skull loss and they guy on the phone tried telling me he would mail me a return bus ticket to go to the VA hospital where they would have to do some exploratory surgery etc. I had two brain operations already each 6 months apart, the craniotomy, and then 6 months later a crainioplasty. Anyway, I hung up and never wanted anything to do with the VA at all, I wanted to be as far from them as possible.

Glad you explained these things to me. I understand what you have provided but thought I'd answer your question as to whether 1977 was flat out wrong or not? And no these are not complications that have progressed since the rating in 1977. According to the recent VA reports and consultations I was told they existed immediatley post operative in Mar 1972.

It's to bad that vets can't contact their RSVR via email like this and sort the whole thing out. The way I read your explanations I think back on the 1977 Rating they flat out let the skull loss slip through the crack and there reason for the misinterpreted EEG presented the statement "abscence of any objective findings" so 10%. Now that I have recent reports that represent "objective findings" that is still 10%, so what's the diff. Am I correct? I can live with that.

Edited January 21, 2007 by RockyA1911

[Vike17]

Rocky,

I'm glad were on the same sheet of music now :) . The only thing we need to do now is sit tight and see how they handle this shull loss claim and IU. I honestly don't know if if they are suppose to also combine this with PTSD also as per §4.126 ( d ) or if they are supose to give it a seperate rating No sense in worrying about it now, we'll just have to see what the Tiger Team does. Keep us informed.

Vike 17

[RockyA1911]

Vike,

I would say they better not combine the skull loss with the PTSD. The skull loss is muskoskelatal and under current version DC 5296 still states (Intracranial complications are to be evaluated separately).

I mean they just awarded the post operative scar separate as 10%. I that were the case they would also have combined the scar with the PTSD and PCS but they only combined the two mental disorders together. I'm sure if there was a way they could have done it, they would have.

The current DC 5296 is the same one that was effective as of 10 March 1976. 3.13 sq in (20.25 sq cm) is my skull loss of 4.5 x 4.5 cm both inner and outer tables. I should at least get the 50% rating separate from the rest I would think. I think their hold up is on the skull loss is they can't fine away around it yet and if they award the 50% claim, then it was definitely a CUE and they have to pay mucho retro. They are still looking for loopholes and just haven't found or invented them yet.

[Vike17]

Rocky,

Keep in mind that Intracranial complications mean symptoms such as headaches and concussions or other neuroological problems. That has already been addressed with this recent rating. Also, according to Cecil's Textbook of Medicine, 22nd edition, it notes that Intracranial complications can also be other secondary physical ailments such as swelling of the brain right after the initial injury. Of coures this doesn't pertain to you because the injury is well over thirty years ago.

"The current DC 5296 is the same one that was effective as of 10 March 1976. 3.13 sq in (20.25 sq cm) is my skull loss of 4.5 x 4.5 cm both inner and outer tables. I should at least get the 50% rating separate from the rest I would think. I think their hold up is on the skull loss is they can't fine away around it yet and if they award the 50% claim, then it was definitely a CUE and they have to pay mucho retro. They are still looking for loopholes and just haven't found or invented them yet"

They aren't intentionally try to find a way to screw you! It wouldn't suprise me one bit if they haven't asked for an advisory opinion on this or something of that nature to try and clear this matter up. It isn't necessary a CUE. As I said before, you have to find out what the regulations were back in 1976-77 as they pertained to other disabilities. It's not about "trying to find loopholes" or trying to "invent" them. They are trying to determine what laws are applicable in the case. As you can see for yourself, this isn't exactly an easy matter regulation wise to sort out!

Vike 17

Edited January 21, 2007 by Vike17

[RockyA1911]

Vike,

Speaking of that "Swelling of the Brain" as secondary, I did have that. The C&P for skull loss, tinnitus, and skin stated:

"Seen at St. Anthony's emergency hospital on date of initial assault 11 Mar 1972 and had burr hole for relief of brain swelling." X-Ray reported star shaped cluster bulge with dural tear with fragments imbedded in the brain. Then transferred to Naval Hospital Great Lakes, IL."

"Had planned crainioplasty for repair of 4.5cm x 4.5cm skull defect in Nov 1972 but was delayed due to abnormal EEG."

"Crainioplasty was done in July 1973 for the repair of the 4.5cm x 4.5 cm defect."

It appears I had a brain hernia, or why else would they have done the burr hole immediately? They only do that to save one's life as a last resort due to brain hernia and swelling.

The only other thing is that the dura required repair during surgery when the crainiotomy was done stating it was lacerated and punctured. I do no that once the dura is penetrated there is then leakage of the spinal fluid, along with damaged brain tissue (by the way is still present).

All I have is the St. Anthony's emergency medical treatment reports to back up brain hernia and that is all.

You still did not answer as to why they did rated the post operative scar separately then?