ptsd Vike17....i Got Another Decision From The Tiger Team

[RockyA1911]

I received a decision today awarding service connection for skull loss at 30% effective 11 July 2005 with overall combined rating increased to 70%.

Please recall I had gotten a combined rating of 60% in Jan of 07.....

50% - Post Concussion Residuals, Left Temporal Lobe contusion, with PTSD

10% - Post Operative Scar

10% - Tinnitus

And the TIGER TEAM deffered the Skull Loss and Individual Unemployability at that time.

They did not mention anything regarding my claim for clear and unmistakeable error for skull loss claimed in 1976 without adjudication until now. No mention of anything regarding claim for retro payment back to original claim dated 28 Nov 1976.

They did not mention in this letter anything regarding my deferred claim for IU either.

The TIGER TEAM stated that my records are being returned to my local regional office and I should contact them if I have any further questions. The date of the letter is 27 Feb 2007 with decision made on 21 Feb 2007.

They made another CUE with the SC for Skull Loss by awarding me only 30% under DC 5296. It is undebateable that my Skull Loss right out of post op and is now 4.5cm x 4.5cm (20.25 sq cm) or 1.77 in x 1.77 in (3.13 sq in.) which is easily larger than 1.140 sq in or 7.355 sq in required for a 50% rating. My skull loss exceeds that by almost three times.

They even listed what constituted 30% right out of the CFR DC 5296 and even listed what was required for a 50% rating. How anybody, especially the TIGER TEAM could not see that big mistake when they read all the VA and military medical records and not see I exceeded the that for the 50% rating. This is just an out and out dumb error.

So I am now at least service connected for the Skull Loss as a stand alone in their letter:

"Service connection of skull loss is granted with an evaluation of 30 percent effective July 11, 2005."

Don't they have to give me some kind of a decision on the requested earlier effective date of Nov 1976 based on CUE claimed at the same time as the skull loss?

Don't they have to render a decision on the deferred IU claim?

In this letter they did not even mention the outstanding Skull Loss with earlier effective date claim nor the previously deferred claim for IU.

Here is the CFR 38, DC 5296

Sec. 4.71a Schedule of ratings--musculoskeletal system.

The Skull

------------------------------------------------------------------------

Rating

------------------------------------------------------------------------

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 in \2\ 50

(7.355 cm \2\).............................................

(my 4.5cm x 4.5 cm verified skull loss is “3.13 in \2\ (20.25cm \2\)”

Area intermediate........................................... 30

Area smaller than the size of a 25-cent piece or 0.716 in 10

\2\ (4.619 cm \2\).........................................

Note: Rate separately for intracranial complications.

------------------------------------------------------------------------

They quoted this right back to me in their decision letter, listed all the medical records, exams, and the stack of everything since 1972 until now clearly reports 4.5cm x 4.5cm skull defect.

What do you make of this Vike?

[Vike17]

Rocky,

50% + 30% + 10% + 10% = 72% rounded down to 70% according to the combined ratings table. Just as an after thought if your IU isn't approved, a 50% rating for the skull loss would only add an aditional 10% to your over all rating (50% + 50% + 10% + 10% = 80%).

Do you have a copy of the C&P exam with the measurements? If so, maybe the Doctor noted some other measurments. I don't know what to tell you, maybe someone doesn't know what they're doing with the metric conversions.

I suspect the reason why the Tiger Team did not address your CUE of an earlier effective date for the skull loss is that it is not in there jurisdiction. The Appeals Team at your Regional Office will probably do that. As far as the IU, they may still render a decion on that too, as they maybe waiting on some type of information. If it wasn't addressed in the most recent rating decision, then it's still an open issue and either they will make a decision or your regional office will do so.

I would advise you to write a NOD as far as this recent rating decision and point out their simple error in calculation. I would also again raise the issue of the CUE of the effective date you had previously raised earlier. One thing to consider is that you may want to wait and submit your NOD until after you receive the decision on your IU. Just make sure, if the issue of IU isn't decided before your one year appeals period for this last rating decision expires, then to submit the NOD on time. I say this because if for some reason your IU isn't approved, you can also appeal that decision at the same time as these two other issues and have it all in one NOD to eliminate any additional confusion than maybe already exists with your C-file.

It does, however, sound like your issues are slowly starting to resolve in your favor though.

Vike 17

[RockyA1911]

Vike17,

Thanks for the response and insight. As far as the skull loss C&P exam, the lady Dr just took the most recent VA xray from Feb 07 and reviewed all the MEB and SMRs. She was nice but there was some kind of boiler plate C&P with drop down boxes where you had to select choices or was allowed only to put digits in for size of loss and it did not have a feature where she could put sq in or sq cm. I even was frustrated with it as she was. It only allowed her to put in 4.8 cm, the software would not allow her to enter anything such as 4.5cm x4.5cm or even the recent 4.8 cm x 4.8cm.

However since the VA in the rating decision did cite under reasons for decision service connection for skull loss 4.5 cm x 4.5 cm skull defect, and all my military medical records, tons of them, plus a few of my statements in support of claim even pointed out the size in US to metric conversion and in sq in and sq cm. I just don't get this one.

Since the Cleveland RO is sending my whole file back to Chicago, I assume it will be about a month before it is archived or on hand there anyway.

What about filing for reconsideration due to clear and unmistakable error in failing to correctly apply the schedule for rating disabilitites under DC 5296 since my loss is almost three times the 50% requirement of 1.140 sq in?

I drafted a letter requesting reconsideration. Would they not use this as additional information since I headed it Statement in Support of Claim? Here is my draft:

VA FILE CSS xxx xx xxxx

STATEMENT IN SUPPORT OF CLAIM

March 5, 2007

Department of Veterans Affairs

2122 W. Taylor St.

Chicago, IL 60612

Subject: Reconsideration of 30% rating for skull loss due to “clear and unmistakable error†in application of C.F.R. 38, Part 4, sec. 4.71a, DC 5296, Schedule of Ratings - - Musculoskeletal System – The Skull.

Reference: Rating Decision dated February 21, 2007 from DOVA Regional Office

1240 East Ninth Street, Cleveland, OH 44199

Enclosure: Rating Decision dated February 21, 2007

Dear VA,

Reconsideration is requested for the referenced and enclosed rating decision of February 21, 2007 from VARO Tiger Team, Cleveland, OH. The reconsideration is requested due to clear and unmistakable error in the assignment of 30% for service connected skull loss when according to C.F.R. 38, Part 4, sec. 4.71a, DC 5296 a 50% rating was warranted.

The area of my skull loss is 4.5cm x 4.5cm and pointing to the rating decision under “Reasons for Decision†bottom of page 2, under service connection for skull loss, and states “Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5cm x 4.5cm skull defect.â€

The U.S. to Metric conversion tables shows one inch conversion to be 2.54 centimeters. My skull loss in square centimeters is 20.25 cm \2\ and converted to square inches is 1.77 in x 1.77 in resulting in 3.13 square inches. This is almost three times the 1.140 \2\, 7.355 \2\ size warranted for a rating of 50%.

Any reasonable review of the evidence before the adjudicators at the time of the February 21, 2007 rating decision would result in the conclusion that a 50 percent rating for skull loss was warranted on the basis of such evidence.

Pages 1 of 2

VA FILE CSS XXX XX XXXX

STATEMENT IN SUPPORT OF CLAIM

XXXXXXX X.

XXXXXXXXX

March 5, 2007

(Continued)

Sec. 4.71a Schedule of ratings--musculoskeletal system.

The Skull

------------------------------------------------------------------------

Rating

------------------------------------------------------------------------

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 in \2\ 50

(7.355 cm \2\).............................................

(My skull loss area, both inner and outer table are 3.133 in \2\

20.25 cm \2\)

Area intermediate........................................... 30

Area smaller than the size of a 25-cent piece or 0.716 in 10

\2\ (4.619 cm \2\).........................................

Note: Rate separately for intracranial complications.

The February 21, 2007 rating decision clearly is in conflict with CFR 38, part 4, sec. 4.71a, The skull, DC 5296 and should have assigned the warranted 50% rating since my skull loss clearly exceeds area larger than a 50-cent piece, and almost three times the 1.140 in. \2\ (7.355 cm \2\.

The February 21, 2007 rating decision is clearly product of CUE. 50% rating for skull loss is warranted and requested.

Sincerely,

XXXXXXX X. XXXXX

Pages 2 of 2

Just as an after thought if your IU isn't approved, a 50% rating for the skull loss would only add an aditional 10% to your over all rating (50% + 50% + 10% + 10% = 80%).

And if I don't get the IU, that extra 10 % from 70 to 80% is still an extra $200+ a month and I need it! I don't want the VA keeping it when I am entitled to it period.

Edited March 3, 2007 by RockyA1911

[RockyA1911]

I just found the C&P report for the skull loss and it isn't the one that says 4.8cm. The C&P states

"Had planned on cranioplasty for repair of 4.5cm x 4.5cm defect in May of 1972, but delayed due to abnormal EEG. Cranioplasty was done in July 1973 for the repair of the 4.5cm x 4.5cm defect. Hospital and Location: Great Lakes Naval Hospital."

It was the Head MRI that stated "2 views of the calvarium reveals multiple left calvarial defect. The largest which is within the posterior left calvarium and measures approximately 4.8 cm. There are metallic surgical clip and sutures seen adjacent to the large left occipital defect."

Naturally the 4.8cm is larger due to the filing down of the 4.5cm x 4.5cm hole in my head all the way to the brain (so the craniotomy removed both inner and outer tables of my skull to the tune of 4.5cm x 4.5cm and then was tossed in the trash) so as to fit and smooth in the cranioplasty. But the fact is my actual bone skull is missing and gone and was replaced with an artificial material, not my skull.

The rating decision flat out even contradicts itself and Duh!!!! Even stating as basis for service connection is the 4.5cm x 4.5cm skull loss repaired by cranioplasty based on my service records. Referenced the C&P and MRI reports too! (20.25 sq cm or 3.133 sq in) and then awarding 30% because it falls into the intermediate area. All service medical records verify 4.5cm x 4.5cm skull defect. So did the VA exam in 1977.

Then adding insult by stating "a higher evaluation in excess of 50 percent is not warranted unless there is evidence of skull loss without brain hernia over an area larger than that of a 50-cent piece or 1.140 sq. inches (7.355 sq. cm.)."

Again Duh!!!!! I met and exceeded the size required for a 50 percent rating by almost three times even in their own writing in their decision letter.

So since they just flat out contradict themselves right in the rating in the service connection basis for service connection being 4.5cm x 4.5cm skull loss contradicts their 30% rating, but justifies their written requirement for a 50 percent rating.

I know this was the Tiger Team, working directly under the Secretary of Veterans Affairs and they are supposed to be the cream of the crop and the special forces of VA compensation if you will.

I really question their competence and since they are the best as far as the VA goes and consists of all highly competent managers only all I can say.................

IS THE REST OF YOU BETTER LOOK OUT!!!!!!!!

Isn't their a simpler way of resolving this without two years of NOD, appeals, etc for an undebatable clear mistake such as this? I am tossing around going to see Senator Obama and when I leave his office it will be off to the local new media where I will give them all copies of this fiasco and the 33 year entitlement for skull loss that is still pending over two years too. That should get some good media with a vet just now getting service connected for skull loss, clearly lowballed, after 33 years of waiting and the VA only wants to pay back to 11 July 05........The date the veteran followed up on a 33 year old unajudicated open claim for skull loss. Was awarded 30% when the vet clearly is entitled to 50% in the contradictory rating decision letter.

They have to really be smoking something powerful up there in that Tiger Team Office in Cleveland.

Maybe Gates can rub off on the VA Secretary and loan him his axe. When they start firing the senior leaders, they will get the idea and the claims will be scrutinized and handled better than this what I received.

I also am wonder if the 30% was a typo error and should have been 50% since the service connection for the 4.5cm and 4.5cm skull loss and the 50% evaluation is listed, but then again they wouldn't have listed the 30% evaluation criteria.

Edited March 4, 2007 by RockyA1911

[Vike17]

Rocky,

You said;

"Naturally the 4.8cm is larger due to the filing down of the 4.5cm x 4.5cm hole in my head all the way to the brain (so the craniotomy removed both inner and outer tables of my skull to the tune of 4.5cm x 4.5cm and then was tossed in the trash) so as to fit and smooth in the cranioplasty. But the fact is my actual bone skull is missing and gone and was replaced with an artificial material, not my skull"

This may be where the problem lies. If the actual visible hole has been somehow repaired regardless if it's with artificial material or some type of bone graph, the VA may be only able to compensate for the size after surgery. So, if after surgery you only have a remaining hole the size of less than 1.140 square inches, this may be the correct rating. Does this make sense. For example, this would be similar to a veteran that had back surgery who had a forward flexion prior to the operation of 25 degrees, but after surgery was able to bend over to 90 degrees. The VA would compensate for his range of motion after the surgical proceedure, not before because this would be the current disabiling affects. This would also hold true in the instance a veteran recieved an artifical knee, for example. The veteran would be rated on limited range of motion after his/her convelesant period regardless of the artificial implant.

As far as requesting a reconsideration versus a CUE claim, these are two distinct different animals. You can only request a reconsideration by submitting "new" evidence to the decision maker. "New" evidence is evidence that the decision maker did not have before them at the time of their prior decision, not simply asking them to reconsider their prior decsion based on a possible error they may have made. That's what the appeals process is for.

Vike 17

[RockyA1911]

"Naturally the 4.8cm is larger due to the filing down of the 4.5cm x 4.5cm hole in my head all the way to the brain (so the craniotomy removed both inner and outer tables of my skull to the tune of 4.5cm x 4.5cm and then was tossed in the trash) so as to fit and smooth in the cranioplasty. But the fact is my actual bone skull is missing and gone and was replaced with an artificial material, not my skull"

This may be where the problem lies. If the actual visible hole has been somehow repaired regardless if it's with artificial material or some type of bone graph, the VA may be only able to compensate for the size after surgery. So, if after surgery you only have a remaining hole the size of less than 1.140 square inches, this may be the correct rating.

Whooooaaaaa!!!!! 4.8cm Vike is the diameter of the skull loss, that is why they compare everything for 50 percent evaluation to a circle hole comparable to a little larger than a 50 cent piece. They use the diameter of the circle for calculating and converting to square inches (square centimeters CM). Filing down the previous skull loss to allow for cranioplasty actually created a larger amount of skull loss by .3 cm, increasing the previous skull loss from 4.5cm diameter to 4.8cm diameter.

4.8 cm in square centimeters is 4.8cm x 4.8cm = 23.04 square centimeters and 3.568 square inches. Definitely larger than the 1.140 sq in (7.355 sq cm) and exceeds the 50 percen evaluation by over three times.

The service connection of skull loss basis for decision in the rating specifically states "Service connection for skull loss. "Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5cm x 4.5cm skull defect." Which is an area the size of 3.133 square inches (20.25 square centimeters) and almost three times larger than 1.140 sq in (7.355 sq cm).

The actual C&P for skull loss stated skull loss, 4.5cm x4.5cm. The medical report of the xray by the VA in 2006 was not a C&P exam. The xray was initiated by the VA neurologist to specifically see if I had any metal in my brain or skull prior to ordering MRI. He was afraid that if there was any metal in my head it could be fatal when putting my head in the MRI. The xray reported simply they noted a several skull defects in the xray with the largest area approx 4.8cm, surgical sutures, and surgical clip, old encelophomacia (old blood) from S/C TBI. They were not measuring or doing a specific xray to determine the size of the skull loss for compensation purposes. It was a brief report and short back to the neurologist. The MRI was looking for evidence of strokes and seizures where the neurologist stated to Not Rule Out some kind of strokes. And that is when he diagnosed me with post traumatic brain encephalopathy due to the TBI.

Either way this is definitely a calculation error and for a rating of only 30%, they had to think that that xray report (not specifically done to determine the size of skull loss, but in prep for MRI to look for strokes, seizures, abnormal vessels, nerves, etc. and had nothing to do with the skull loss) and must have mistook the 4.8cm in that report as being square centimeters, even though I and the medical community know that the 4.8cm represents the diameter, therefore square inches and square centimeters must be calculated by using the 4.8cm as a square root such as 4.8cm x 4.8cm to arrive at the square centimeters. That report does not state sq inches nor sq centimeters, just 4.8cm and from doctor to a doctor when it comes to skull loss it means diameter/circle. Afterall all the hole saws are round that remove the skull bone and so are the drills for burr holes.

It's not rocket science. However, how can that be when they used for service connection basis the 4.5cm x 4.5cm from my military records as the basis for granting skull loss service connection.

This definitely is a fluke and such a simple mathematical error and there has to be some way to get this corrected other than the whole two year NOD process and more paper and jamming up the appeals line with simple math errors. Figures don't lie and can be easily seen and absorbed by both parties.

If a NOD is the only way I can bring this error to their attention then I guess that is what I'll have to do, but it is something and the kind of error that is corrected in a flash, but a NOD takes about two years for them to look at the thing even.

The only thing I can figure is they did not use my service records as the basis for skull loss service connection as they stated in the rating decision, but took the 4.8cm from an xray not intended to measure for skull loss and not C&P exam and thought it was square centimeters in their own minds, determined the square root of 4.8cm to be 2.190 cm and then divided the 2.190 cm by 2.54 cm to arrive at 0.862. 0.862 in X 0.862 in = 0.743 square inches. Therefore 0.743 sq in (4.8 sq cm) is a 30 percent rating and falls into the intermediate. Someone thought in their own mind that the 4.8cm was square centimeters when in actuallity is DIAMETER.

I think this is what they had to have done and if so they lied about using the service records and the 4.5cm x 4.5cm as the basis for the award and used an xray that was not intended to measure both inner and outer tables of the skull loss specifically, it was to determine presence of stroke or seizure activity damage to the brain.. They did not state they used the xray as a basis. There are plenty of xrays at least 10 or 12 since my brain injury since 1972, all on file, and all have reported 4.5cm x 4.5cm skull defect.

What a bunch of beaucracy!!!!!

[Vike17]

Rocky,

You've got me so confused as to what is what, I can't tell if you have had portions of your skull removed the size of a 50 cent piece or half of your head was blown off. I don't mean this in a negetive way by any means, o.k.

At any rate, it's a damn good possibility the RVSR looked at that x-ray report and saw 4.8cm as square cm's as you stated. Remember they aren't doctor, they just read what's in front of them. Furthermore, you also said there are 10-12 x-rays since your surgery, I'm wondering if there isn't something more to this. I don't know, you're right a measurement is a measurement is a measurement and your skull loss isn't just going to disappear re-appear miraciuosly. If you feel this decision is incorrect, just submit a NOD and point it all in the appeal. I'm sure if there isn't anything else to this, a DRO will fix the error pretty quickly. Having said this, if your IU is aproved, then just this error with the skull loss is pretty much a moot point anyways, beacause it would warrant an additional 10% and wouldn't bring any additional benefit such as SMC ect... I think you also claimed strokes and seizures as secondary to this if I'm not mistaken? If this is the case, you would want to get those issues resolved favorably because they are life threatening regardless of the IU.

Vike 17