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?

[RockyA1911]

Hey Vike,

I know what you mean about being confused with this metric and US measurements. I don't understand why there isn't one measurement standard for this VA stuff so everybody understands the same sheet of music. No I didn't file claim for strokes or seizures, the neurologists at the VA during my first annual neurololgy visit (I have another this coming May) wanted to see if there has been any evidence of S/S since 1976 to when I started enrollment in VA medical program. He stated do not rule out S/S and there is evidence of post traumatic encephalopathy (more probable than not) due to in service head trauma. I sent that to them a long time ago.

I submitted the NOD today. Please take a look and see if you can understand this. I cut it down to two short pages bullet style and pointing to specifics in the rating and evidence as it directed. I NODed the 30% skull loss rating and effective date of 11 July 2005. Please tell me if this NOD has a chance of winning. Can't believe I may have two to four more years of getting this resolved. Seems silly and a big waste of government resources that could be working claims and backlog for new claimants.

Is this a winner or no?

NOTICE OF DISAGREEMENT

5 March, 2007

Page one of two

Veteran: xxxxxxx x xxxxx

VA File Number: xxx xx xxxx

1. Disagreement with Rating Decision dated February 21, 2007.

a. Disagree with 30% rating for skull loss. 50% evaluation is warranted.

b. Disagree with effective date of 11 July, 2005 for service connection entitlement for skull loss. Effective date of entitlement is 28 November, 1976.

2. Skull Loss:

a. The skull loss area is 4.5cm x 4.5cm which is 20.25 square centimeters or 20.25 \2\. Conversion from U.S. measurement to metric 20.25 \2\ is 3.133 square inches or 3.133 in \2\.

b. 4.5 cm x 4.5 cm = 3.133 in. \2\ (20.25 cm \2\) and larger than a 50-cent piece and almost three times that required for a 50% evaluation.

c. The requirement for a 50% evaluation is 1.140 in \2\ (7.355 cm \2\)

d. Iowa City VAMC x-ray dated 27 February 2006 showed approximately 4.8cm, representing the diameter of the skull defect. 4.8 cm in square centimeters is 23.04 cm \2\ ( 3.568 in. \2\.

e. C.F.R. 38, Part 4, sec. 4.71a, DC 5296, Schedule of Ratings - -Musculoskeletal System – The Skull:

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\).............................................

(The skull loss area, both inner and outer table is 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.

NOTICE OF DISAGREEMENT

5 March, 2007

continued page two of two

Veteran: xxxxxxxxx x xxxxx

VA File Number: xxx xx xxxx

3. Entitlement to earlier effective date:

a. Point to rating decision, page 2, “Service Connection of Skull Loss Your service medical records detail the cranioplasty performed in July 1973 for the repair of a 4.5 cm x 4.5 cm skull defect”.

b. The same factual predicate used as a basis for granting a rating for service connection of skull loss in the 21 February, 2007, rating decision was essentially before the adjudicators at the time of a 25 April, 1977, rating decision which granted service connection for post concussion syndrome with brain trauma, left temporal lobe contusion, chronic and assigned a 10 percent rating for this disability with effective date of 28 November, 1976.

Any reasonable review of the evidence before the adjudicators at the time of the April, 1977 rating decision would result in a 50 percent rating of skull loss, 4.5cm x 4.5cm.

c. Point to C.F.R. 38, Part 3, Sec 3.400 “Except as otherwise provided, the effective date of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final decision, or a claim for increase will be the date of receipt of the claim or the date the entitlement arose, whichever is later”.

d. Point to original claim and receipt of claim dated 15 November 1976 for Skull Defect, temporal parietal, Left. Size 4.5cm X 4.5cm. The issue of skull loss claim was not adjudicated.

e. Point to VA form 21-2507, Request for Physical Examination dated 22 November, 1976 block number 13 “Other disabilities for which examination is requested (Skull Defect 4.5cm x 4.5cm).

f. Point to C&P examination, January, 1977 “4 ½” x 4 ½ “ skull defect from x-ray.

g. Point to 25 April, 1977 rating decision.

[john999]

Rocky

Why was the IU deferred? If you are 70% now and unemployed and have no other NSC conditions that could account for your being unemployable the IU is pretty obvious. I was 70% when I got IU, but had to fight for it since I had a NSC condition. The VA tried to put it all on the NSC problem.

[RockyA1911]

John,

I don't know why the IU was deferred. It said in the decision awarding 60% combined in Jan 07 just deferred pending additional information and that is all. That same decision also saidservice connection for Skull loss and entitlement to earlier effective date is deferred pending VA review examination. Every disability I have is service connected and I have no NSC disabilties.

Just got the skull loss rating of 30% that should have been easily 50% with no mention about the earlier effective date at all or deferred IU. This decision awarded service connection for the skull loss using essentially the same evidence for the skull loss claimed in Nov 1976 that was never adjudicated. This gives me a combined rating of 70% as of 21 Feb 2007 with Brain Trauma with PTSD disability being 50%. They have a IMO Psychiatrist MD letter stating I am unemployable and the VA neuropsychologist's report that states when it comes to employment and work environment he would severely challenged.

And then there is the C&P examiner that spent all of about 10 or 15 minutes to state "I must say he was able to maintain steady employment with the government for a good number of years."

Your guess is as good as anybody's. I guess the reason they deferred the IU was in Jan 07, I only had a combined total of 60% with one disability rated at 50%.

After what they did with the skull loss rating, combining the PTSD with the Post Concussion Residuals, and then just ignoring my many requests for earlier effective date for skull loss, it would not surprise me if they turn me down for IU too!

I just read a COVA case where COVA agreed with the BVA and RO and denied this vet IU. He is comined total of 80%, 50% PTSD, Brain Trauma (GSW), Skull Loss, blind in one eye, limps and must use a can. It was verified he is in severe pain a lot of the time. It also said he only had a 4th grade education and the VA shrink said he has the mind of an 7 or 8 year old. He did odd jobs when he could work as a handy man, simple stuff and that is it. He had not been able to work most of the time.

Who would have thought. COVA denied the IU too stating that his main disability was his limited education and that he does not work because he had not sought work and that he could find employment as a janitor or other industrial type job.

"It's like a box of chocolates, you never know what you're going to get"

Edited March 6, 2007 by RockyA1911

[sixthscents]

The IU can be deferred for a whole bunch of reasons, but probably (or at least most likely) there is going to be some other exam. Thats my experience anyway. Especially when PTSD is involved. I have several of those pending IU right now, for unstated reasons, but it almost always turns out that they want another opinion from another psych.. looking at the employability/social interaction and family history (ie divorce, married, etc.)

Yeah its seems that the rater made an error in their conversion... but its kinda easy to see how also. I did years in Electrical Engineering in college, and I still hate the metric system. I STILL have to look up the tables etc. So its not suprising that a rater may have mixed it up. I did note that in your NOD you very clearly laid out HOW you thought the rater had made a mistake... but never actually said they did. I know... it seems kinda silly, but I almost always state "I believe the rating official erred in that... etc etc etc" then I provide the HOW... think of it like this:

What happened wrong

How it happened

What should have happened

Why it should have happened

If you follow that format each and every time you cant go wrong....

I generally Type the What happened wrong in bold as a header

For example: "I believe that the rating official erred in that they granted a 30% rating when a more correct rating of 50% was clearly warrented"

Then just follow along, adding the great information you used.

The idea is to be consistent, and to produce a document that clearly states why you disagree, Why you think the error occured, What the correct rating should have been, and why... with the proper cites to regulation which you used...

Overall your NOD is teriffic, I didnt look up the reg. but it seems clear that an error was made... if the reg in fact state what you say... which I am sure it does...

Again, an excellent job, and very clear, I just tend to use the same format always, since it seems to be the one that works the best. Generally (and I noticed you didnt) I do not get antagonistioc with raters... there have been a FEW exceptions to this... when the error made was incredibly obvious and stupid.. just plain stupid (like not accepting a line of duty determination because the soldier was Inactive duty for training - so the rater said they were not active duty hence no service-connection... yep.. no bull IADT at DRILL and injured with a LOD yes, and the rater denied service connection... whew..) anyway great job... just highlight the point you are trying to make, and follow from there.

I hate the metric system though... and to be honest I could have made the same mistake the rater did... so...

Good job in catching it...

Edited March 6, 2007 by sixthscents

[RockyA1911]

Thanks six,

I decided I wanted to keep it short with bullets and pointing to specifics in the decision and evidence used. Since the error is math, it doesn't matter to me and I dare not speculate how they made the error, that is on them. When it is numbers and figures I just state the correct measurement and calculation result. Figures don't lie and are undisputable, the fact is my calculation is correct, that is all that matters. And as far as the EED, there is a reg, the CFR that entitles me to the EED, so I just put that in front of them. The shorter the NOD and directly to the point, two pages or less, and maybe they will look at it. I felt no use in pointing fingers, it serves no useful purpose so instead of stating they errored, I simply state I disagree with their decision and this is why period, provide the facts, and present the correct decision as I see it.

[RockyA1911]

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...

The difference between the 30% and 50% skull loss rating will not bring much benefit if IU is approved as far as total combined rating from 70% to 80% is correct.

BUT, the 50% skull loss over 30% makes a great deal of difference when it comes to over 30 years of back pay or an earlier effective date for skull loss back to 28 Nov 1976. I'm certain it would be in the thousands of dollars.

The EED, plus the 50% skull loss would give me two single disabilities greater than 40% and a combined total of 80%, and if IU is not approved there is over a $200 per month difference.

I will not let the error on the 50% skull loss go moot regardless because of the pending claim for EED, if still in the deferred mode or if not it is covered in this NOD.