Gerald N. Unger - Comment on VA Adjudications

SUBMITTED IN RESPONSE TO RIN 2900-AM75 ?SCHEDULE FOR RATING DISABILITIES; EVALUATION of RESIDUALS OF TRAUMATIC BRAIN INJURY? This is an opinion, and observation relative to the Veterans Administration published changes to 38 CFR Part 4 identified as RIN 2900-AM75, ?Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury, (TBI). My purpose, having examined the principal task of RIN 2900-AM75 under the light of practical experience, is to bring to the forefront as far as possible within a small compass, the fallacy in the direction of the Veteran?s Administration (VA) proposed enthymeme. Instinct would have us applaud the VA?s recognition that there is a ?problem? in principle that requires revision. However, every Veteran knows through reason, and practical experience that all warfare is based on deception. This knowledge in and of itself requires closer scrutiny of RIN 2900-AM75. If the development of reason is vastly more prominent in man than in any other of the animal creations, why than is the proffered rule change a continuation of an automatic and unconscious rubric? The bureaucracy of deductivism and/or the ?law of deductive form,? have repeatedly proven to be inadequate and unjust as a protocol design. The VA?s reasoning can only be considered petrified, for by fiat it continuously ignores a basic tenet of medicine and reality in its rating procedures. We are an organism of systems, we are in all ways, and matters the sum of our systems not merely independent parts. RIN 2900-AM75 is merely another example of ?petrified reasoning,? evidence of a consistency and change bias. Essentially RIN 2900- AM75 is a bureaucratic version of the ?Emperor?s New Clothes.? Promulgating a ?rule? that makes use of passive exclusionary language rather than inclusive action to identify and capture a ?problem,? of the present is a continuation of a VA?s rubric of the past. The fluff touted to Veteran?s in an effort to gain a consensus that Diagnostic Code 8045 is being modernized via addition of a noun, residual, ?Residuals of Traumatic Brain Injury,? continues the injustice of the past. For it vitiates related epidemiologic pathophysiology of TBI. Diagnostic Code 8045 needs to be updated to allow for the proper management and staging of Traumatic Brain Injury, but to prevent an abuse of discretion, and exclusion-by-convenience the legal language must be ?active? and inclusive such as ?Acquired Brain Injury,? which allows for the inclusion of primary, and secondary injury, such as injury secondary to impact from surrounding debris or autonomic dysfunction syndrome, and paroxysmal autonomic instability which constitutes mostly damage which is invisible on imaging studies. The language set forth in the classification of TBI gives the ?rater? permission to discount, a.k.a. ignore, acquisition etiology detailed in the Veteran?s medical records. Action premised on nothing more than interpretation, ?rater discretion? codified in vague and exclusionary, passive language, allowing the VA to disregard the totality of the pathophysiology. Anyone who has served in the capacity of Veteran Advocate is familiar with this technique of the VA: the analysis of examples of parts. In an effort to be fair, just and answer the question whether the proposed change in operation of the VA is business as usual; by design, or truly a change in sequence of the totality of cause and effect, the VA?s analysis of tinnitus is examined. The number of Veterans submitting disability claims for disability benefits for tinnitus is conservatively a Fibonacci prime with thousands of digits. Tinnitus, is a condition recognized by RIN 2900-AM 75 as a possible consequence of an injured brain. Yet WWII, Korea, Vietnam and Desert Storm Veteran?s seeking disability benefits for tinnitus are rarely awarded more than zero (0%) percent service connection, or at the most ten (10%) percent, and that only after a lengthy and protracted appeals process. The analysis of example is based not on the auditory, neurologic, or endocrine system but on an individual ear- a part not the whole system. The language of RIN 2900-AM 75 is specific that each condition will be examined separately under an appropriate diagnostic code. RIN 2900 ? AM 75 continues the myopic logic of the past, anchored on a usual, customary risk-adjusted certainty equivalent. The Veterans Administration continues to orchestrate its consistency bias, a locus classicus, a presumption giving credence to the perception and indictment of methodological reciprocity exercised in the examination of rating decisions of Post-Traumatic Stress Disorder (PTSD) and the toxicokinetics, mechanism of action and disease outcomes of Agent Orange. TBI a consequence of blast injuries is the impetus of the VA?s action. Blast injuries cause the most damage at the interface between tissues in contact with the atmosphere. A blast approaching 100 lb/inch? (690kPa) is acknowledged as the minimum threshold for serious damage to humans, but this is not an absolute. For in some instances injury type is irrelevant. It is with a reasonable degree of medical certainty, that even mild TBI is pathophysiologically relative to a life threatening traumatic event, which serves to significantly increase the consequence of PTSD and depression. The etiology, pathophysiology and outcomes of even mild TBI are far from definitive. RIM 2900-AM 75 scheme to accept an average of three subjective numbers from an even more subjective inconclusive report as the ?rule? to determine cognitive impairment in the aftermath of even mild traumatic brain injury and psychological stress is a license to believe that success comes by chance. Key aspects in creating value in this matter, is the manner of presentation which affects the decision-making process, as well as whom is in control of the process. It is agreed that norms must be specified to overcome pseudocertainty. That requires a review of systems, not just the chief-complaint. The harm-benefit analysis Veteran?s are being asked to embrace in RIN 2900 ? AM75 continues to rely on expected utilities without consideration of presentation and attitude or pathophysiology. This omission of content, requires amplification if the VA mission and principles are to be extended to policies and judgments. The reason for denial of Veterans Benefits based on the mere felicities of turn or phrase and the architectonics of opinions put forth by VA fiat is the usual and customary domain of Veteran Advocate?s who prosecute disability claims. In this day-and-age, it is reasonable to believe that lessons were learned from history. This appears not to be, for RIN 2900- AM 75 is by design business as usual, and exemplifies an inconsistency between loyalty to America, and loyalty to our Veterans. It is high time that the logic of language yield to the logic of reality. Respectfully Submitted, Gerald N. Unger, M.D., J.D., LL.M., Executive Director/CEO I USMC 68-72