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,

The skin is considered a seperate bodily etoliogy. That's why one can obtain service-connection for scars as secondary to an service-connected disability.

If a veteran doesn't claim the scar, then generally the VA won't address it. Like I've said before, sometimes if it really stands out, the VA may infer the claim of a scar, but not always. If they didn't rate it back then, it's because you didn't claim it. I know what you're thinking, if the VA didn't infer the scar back then, it still not a CUE.

Vike 17

[RockyA1911]

Vike,

No, I wasn't thinking that about the scar at all, I know I did not claim it back then because when I asked the guy at the VA that helped me fill out my initial claim, he told me I wouldn't get anything for the scar, so like a dummmy I didn't.

What I was thinking is since they already combined the mental disorders with neurological deficits and also rated the scar separate, the deffered skull loss should stand alone also.

And the skull loss is not an inferred claim, I claimed it on 15 Nov 1976, 12 days prior to discharge from the Marines. They took 4.5cm x4.5cm both inner and outer skull during surgery and a year later replaced that 4.5cm x 4.5 cm opening with an artificial plastic materiel that is not my skull.

That's what I was thinking.