In response to your Supplemental Statement Of the Case dated Dec 18, 2008 the following is submitted to further substantiate and clarify my claim.
Listed in the evidence section, the AMC considered evidence from Jan 18, 1979 to August 12, 1998.
The BVA remand requested the AMC to review all records from June 1978 to Aug 1998. I am requesting that the AMC review those additional records as required by the BVA Remand. Those records contain medical evidence for thefirst seven and one half months from date of separation and should be considered as these decisions are to be based on an analysis of all the evidence of record.
Issue 1. Entitlement to service connection hearing loss left ear.
As the current medical evidence does not support a grant for entitlement to service connection for left ear hearing loss, I am in agreement with your current denial.
Should future medical evidence be supportive of this issue, I will reopen the claim at that time.
Issue 2. Entitlement to service connection for a pulmonary disorder.
I disagree with the denial of service connection for a pulmonary disorder. I request compensable service connection due to the medical evidence of record. I am currently prescribed inhalers, nebulizer treatments and the need for steroid medications a few times each year.
As evidenced by my discharge physical February 1978 it was noted that I experienced shortness of breath when running and a chronic cough, listed multiple times in my service medical records.
Furthermore, as evidenced by my records dated January 18, 2001, it is specified by Dr. David Layer, my primary care physician that my respiratory symptoms of asthma/COPD began in the service and Dr. Layer supported his statement with medical rationale that asthma is a chronic process, (enclosure 1).
This opinion was requested by the ST Pete Varo, specifically Barbara Harker.
In addition, my C&P examination for Respiratory Diseases, dated 28 Feb 2002, the VA examiner James Shear MD, stated, due to the frequent upper respiratory infection, seasonal rhinitis, recurrent upper respiratory infection, chronic otits media , shortness of breath on physical training runs, to relate to her chronic obstructive pulmonary disease
and asthma, is as likely as not to be service connected (enclosure 2).
Please note for your consideration, I am service connected for chronic suppurative otitis media.
Dr. Shear and Dr Layer state they reviewed my service medical records.
Their opinions were based upon the review of my records and sound medical principle, (see enclosure's 1 & 2).
Their opinions were not made based solely on my reported history.
Pages 8 & 9 of the AMC SSOC states, "the supplemental evidence provides evidence that you sought treatment for chronic sinusitis, chest congestion, upper respiratory infections, excessive coughing, nasal congestion, asthma, cardiac condition including fatigue and dypsnea, atypical chest pain status post smoking, neck pains,
ear infections and headaches. Testing and evaluations completed included Pulmonary Function Testing (PFT's),
Cardiac Stress testing, echocardiogram, audio testing, MRI, and x-rays.
However, of all the evidence received, there is no nexus linking the claimed conditions to military service."
I feel that by the medical evidence of record, both of these doctor's have provided a nexus linking my pulmonary disorder to military service and both are supported by medical rationale.
The BVA remanded this case due to "The opinion should be based on review of the evidence of record and sound medical principles, and not solely on the veteran's reported history." This action was completed in 2001 and 2002 as evidenced above .
While the current C&P examination dated 10/2008 performed by C. Rockwell ARNP states that my dx of asthma and bronchitis are less likely as not caused by the service.
Her rationale/opinion is based solely upon the fact that I was not diagnosed with asthma or chronic bronchitis while in service or with in a year of leaving the service This rational/opinion is a direct violation of 38 USCA ss 101 (16), 1131 West 2002).
She did not use sound medical principals in reviewing the C-file or connecting the symptoms to a disease process as noted by the medical doctors, she strictly stated a negative opinion based on a lack of diagnosis.
Furthermore I am perplexed as to Ms Rockwell’s, statement in her C&P 10/2008 whereshe states that my” bronchitis onset occurred during service” , (enclosure 3) but she opined that since I was not diagnosed during service or within a year of discharge that she was unable to make a direct connection.
I refer to 38 CFR 3.303 (d).
I feel the medical evidence is clearly in support of the claim and at minimum is in equal balance, and my claim should be allowed.
In as much as two physicians versus an advanced registered nurse practioner opinions differ it is my opinion that this information would qualify under the benefit of the doubt rule.
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz
v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001);
38 C.F.R. § 3.102 (2004). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is not applicable.
Ortiz, 274 F.3d at 1365
Issue 3. Entitlement to service connection for a heart disorder.
As the current medical evidence does not support a grant for entitlement to service connection for a heart disorder, I am in agreement with your current denial. Should future medical evidence be supportive of this issue I will reopen the claim at that time.
Issue 4. Entitlement to service connection for a neck disorder.
I disagree with the denial of service connection for a neck disorder. I request compensable service connection due to the medical evidence of record, diagnosed as DJD/arthritis.
As noted in a July, 2003 C&P examination performed by Jan Hischfield MD that he reviewed the C-files and medical records that were pertinent to this exam and stated,
"Diagnostic Impression: 5. Cervical neck strain with suspected cervical degenerative disc disease, traumatic in origin, with chronic pain and decreased range of motion.
Remarks: It is my medical opinion that her cervical neck symptoms of pain and discomfort, and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely related to the three traumatic events she relates from her military experience", (enclosure 4) .
These events are well documented in my service medical records and Dr, Jan Hirschfield has provided medical rationale with his opinion linking the claimed condition to military service.
Again C&P examiner Rockwell stated her opinion/rational that the DJD/Arthritis was less likely a result of the service was based entirely upon no diagnosis during service or within year of separation of service she was unable to make a direct connection. I refer to 38 CFR 3.303 (d).
It is my belief Dr Jan Hirschfield's opinion was based on sound medical priniciples and a review of my records while examiner Rockwells was based on a lack of diagnosis. This is a direct violation of, the determination as to whether the requirements for service connection are met, is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.
In addition, as discussed and certified in the BVA transcripts, in the 1978 C&P examination, which was only four months after separation, the medical evidence states that I have limitation of motion, pain and muscle spasms in
the cervical region, (enclosure 5).
In 1978, the Schedule of Rating Disabilities provided a ten percent evaluation when there was evidence of muscle spasm.
"The impression was negative cervical spine. The VA physician diagnosed paravertebral muscle spasms of the cervical spine, mild. In a January 1978 rating action the veteran was granted service connection and assigned a 10 percent rating for paravertebral muscle spasm of the cervical spine."
I am aware this BVA decision does not set precedent; I only point it out in reference to, the Schedule of Rating Disabilities in existence and to be applied in 1978.
In transcript's from my BVA Hearing dated May 26,2006, on page 25 Chairman Jonathan Day agreed with this statement as being "quite correct".
(enclosure 6).
With this acknowledgement, I’ am perplexed as to why the AOJ,BVA and/or the AMC, has not themselves, called a clear and unmistakable error on the prior rating decision dated October 1978, that denied service connection for a neck injury, as it clearly did not properly apply the regulation from the Schedule of Rating Disabilities in effect during
this 1978 timeframe.
I feel the medical evidence and rationale is clearly in support of the claim, provides a nexus linking the claimed condition to military service, and at minimum is in equal balance.
I feel that this medical evidence would qualify under reasonable doubt .
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz
v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001);
38 C.F.R. § 3.102 (2004). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is not applicable.
Ortiz, 274 F.3d at 1365
Issue 5. Entitlement to an effective date prior to July 30, 1999, for the grant of entitlement toservice connection for post-concussive headaches.
Please see the information and disagreement below. This disagreement goes for Issues 5 and 6.
Issue 6. Whether a clear and unmistakable error was committed by rating decision datedOctober 31,1978, which denied entitlement to service connection for headaches.
I disagree with the denials of Issues 5 and 6.
On the two inextricably intertwined issue's of 5. and 6.
Entitlement to an effective date prior to July, 30, 1999 for the grant of service connection for post-concussive headaches and clear and unmistakable error committed in the prior rating decision dated October 31, 1978, that denied service connection for headaches.
I do not contend and firmly acknowledge that I understand, the Reasonable Doubt Doctrine is not to be applied in a claim for clear and unmistakable error. In no way, am I claiming the Doctrine of Reasonable Doubt in my claim of clear and unmistakable error.
The rating decisions promulgated by the Regional Office, the BVA and the AMC continue to include headaches as a symptom of seizure and reflect inclusion of disability associated with both the epileptic seizures and headaches which are shown in the record to be separate conditions. Headaches shown in service medical records are diagnosed as muscle tension headaches(enclosure 7).
My VA form 21-526 date stamped July 31, 1978 requested service connection for:
hearing loss, otitis media, concussion, lumps on back of neck, headaches, dizziness, back condition and a neck condition. All claimed disabilities were denied by rating decision dated,10-31-1978.
The medical evidence contained in the October 1978 rating decision, clearly documented recurrent headaches as evidenced in service medical records.
Had the Schedule of Rating Disabilities been applied, the claim for headaches
Would have been granted.
Of record is a Notice of Disagreement dated 1/15/1979 - in this Notice of Disagreement seizures were added to the list of claimed disabilities.
Medical evidence, in the form of in-patient VA pharmacy records,
dated 1/11/1979 through 1/20/1979, (enclosure 8) continued to document medication for treatment of recurrent headaches and neck pain.
Of record is VA form 21-4138, Statement in Support of Claim, date stamped "Disagreement Jan 25 1980".
The very first sentence states, "I appeal your decision denying service connection for headaches and dizziness, residuals of concussion and seizures. All my service records show the dizziness, headaches, blackouts, memory, lumps on neck and head" (enclosure 9).
Of record is Regional Office Statement of the Case, dated February 6, 1980 and states,
"Decision: Service Connection for claimed headaches and dizziness and residuals of concussion and seizures is not established" (enclosure 10).
Of record in my claims file is a request stating:
" Dear Sir: As a veteran being hospitalized at the VA hospital, it is requested that the hospital report be secured for evaluation of my claim". It is date stamped Received Adjudication Division Feb 20, 1980, VA Regional Office,St. Petersburg, Fla.
(enclosure 11).
Of record, on July 15, 1980 a Hearing was held before Rating Board 211 of the Veterans Administration, St. Petersburg Regional Office.
This Hearing was held before a panel of three members. As documented in the Hearing transcript's the issues listed were service connection for residuals of post concussion syndrome, dizziness, headaches and seizures.
The issue of headaches are addressed in the Hearing Transcripts .
The result of this Hearing is contained in the Rating Decision dated 8-4-80, which granted service connection for Diagnostic Code 8910, Seizure Disorder, evaluated at
40 %, with an effective date of 6-6-1978, day following separation.
The 40 % evaluation granted for seizure disorder is not inclusive of headaches, it is strictly for the seizure disorder and the percentage level is evaluated by the number and frequency of seizures as required by the Schedule of Rating Disabilities.
Headaches are a completely separate issue.
Of record, in a 2000 VA C&P examination for a different disability, the examiner also opined on my headaches.
A Regional Office Rating Decision dated 05/19/2000 granted service connection for headaches with an evaluation of 10 percent effective July 30, 1999. The decision states, "VA examination shows the veteran has a chronic headache which appeared to be a muscular or tension type headache. This is repeated cumulative medical
evidence as that in service medical records and that of record in the 1978 denial for headaches. It is not new and material evidence by VA definition. I did not request to re-open this claim and did not present new and material medical evidence.
I filed a Notice of Disagreement for an earlier effective date for headaches.
The Regional Office responded in Rating Decision dated 06/27/2001, by claiming the grant of headaches was a clear and unmistakable error on the part of the VA.
"The veteran has been service connected for headaches as part of her post concussion syndrome since 6-6-1978. She was given a separate rating for headaches in error by rating dated 5-19-2000. As stated in the proposal to terminate the separate service connection, a separate evaluation is prohibited.
Service connection for headaches were terminated effective August 31,2001" (enclosure 12).
I filed a Notice of Disagreement with this decision and requested a DRO Hearing.
The DRO Hearing resulted in Rating Decision dated August 11, 2003 and states,
"Although it is clear that your current neurological symptoms arose from the same event(s) during service, the pathology of your idiopathic seizure disorder and your claimed headaches represent separate disease entities and a separate
evaluation for each is warranted". The DRO continued with the same effective date of July 30, 1999.
I contend I did not reopen this claim with new and material evidence. The VA continues to state I have been service connected for headaches since 6-6-1978, day following separation.
But not for the error made in the Rating Decision dated October 31, 1978, I would have been in receipt of this additional 10 percent service connected compensation for many years
As the seizures and headaches do not coincide with one another. The veteran is intentionally entitled to a separate rating for headaches to the extent that a disability warranting a separate rating is shown. In fact, the assignment of multiple
separate ratings for the same service-connected disability is required in circumstances where the ratings are not "duplicative of or overlapping with" the symptomatology of other elements of the service-connected disability.
Esteban v. Brown, 6 Vet. App. 259, 261-62
Under VA regulations, if duplication and overlapping are avoided, separate ratings do not contravene a VA regulation that prohibits the pyramiding of ratings for service-connected disabilities. 38 C.F.R. § 4.25
I thank you for your dedication to veterans and your consideration on the above matters.
Sincerely,
Carlie passed away in November 2015 she is missed.
Question
carlie
Have I covered my bases ?
carlie
In response to your Supplemental Statement Of the Case dated Dec 18, 2008 the following is submitted to further substantiate and clarify my claim.
Listed in the evidence section, the AMC considered evidence from Jan 18, 1979 to August 12, 1998.
The BVA remand requested the AMC to review all records from June 1978 to Aug 1998. I am requesting that the AMC review those additional records as required by the BVA Remand. Those records contain medical evidence for the first seven and one half months from date of separation and should be considered as these decisions are to be based on an analysis of all the evidence of record.
Issue 1. Entitlement to service connection hearing loss left ear.
As the current medical evidence does not support a grant for entitlement to service connection for left ear hearing loss, I am in agreement with your current denial.
Should future medical evidence be supportive of this issue, I will reopen the claim at that time.
Issue 2. Entitlement to service connection for a pulmonary disorder.
I disagree with the denial of service connection for a pulmonary disorder. I request compensable service connection due to the medical evidence of record. I am currently prescribed inhalers, nebulizer treatments and the need for steroid medications a few times each year.
As evidenced by my discharge physical February 1978 it was noted that I experienced shortness of breath when running and a chronic cough, listed multiple times in my service medical records.
Furthermore, as evidenced by my records dated January 18, 2001, it is specified by Dr. David Layer, my primary care physician that my respiratory symptoms of asthma/COPD began in the service and Dr. Layer supported his statement with medical rationale that asthma is a chronic process, (enclosure 1).
This opinion was requested by the ST Pete Varo, specifically Barbara Harker.
In addition, my C&P examination for Respiratory Diseases, dated 28 Feb 2002, the VA examiner James Shear MD, stated, due to the frequent upper respiratory infection, seasonal rhinitis, recurrent upper respiratory infection, chronic otits media , shortness of breath on physical training runs, to relate to her chronic obstructive pulmonary disease
and asthma, is as likely as not to be service connected (enclosure 2).
Please note for your consideration, I am service connected for chronic suppurative otitis media.
Dr. Shear and Dr Layer state they reviewed my service medical records.
Their opinions were based upon the review of my records and sound medical principle, (see enclosure's 1 & 2).
Their opinions were not made based solely on my reported history.
Pages 8 & 9 of the AMC SSOC states, "the supplemental evidence provides evidence that you sought treatment for chronic sinusitis, chest congestion, upper respiratory infections, excessive coughing, nasal congestion, asthma, cardiac condition including fatigue and dypsnea, atypical chest pain status post smoking, neck pains,
ear infections and headaches. Testing and evaluations completed included Pulmonary Function Testing (PFT's),
Cardiac Stress testing, echocardiogram, audio testing, MRI, and x-rays.
However, of all the evidence received, there is no nexus linking the claimed conditions to military service."
I feel that by the medical evidence of record, both of these doctor's have provided a nexus linking my pulmonary disorder to military service and both are supported by medical rationale.
The BVA remanded this case due to "The opinion should be based on review of the evidence of record and sound medical principles, and not solely on the veteran's reported history." This action was completed in 2001 and 2002 as evidenced above .
While the current C&P examination dated 10/2008 performed by C. Rockwell ARNP states that my dx of asthma and bronchitis are less likely as not caused by the service.
Her rationale/opinion is based solely upon the fact that I was not diagnosed with asthma or chronic bronchitis while in service or with in a year of leaving the service This rational/opinion is a direct violation of 38 USCA ss 101 (16), 1131 West 2002).
She did not use sound medical principals in reviewing the C-file or connecting the symptoms to a disease process as noted by the medical doctors, she strictly stated a negative opinion based on a lack of diagnosis.
Furthermore I am perplexed as to Ms Rockwell’s, statement in her C&P 10/2008 where she states that my” bronchitis onset occurred during service” , (enclosure 3) but she opined that since I was not diagnosed during service or within a year of discharge that she was unable to make a direct connection.
I refer to 38 CFR 3.303 (d).
I feel the medical evidence is clearly in support of the claim and at minimum is in equal balance, and my claim should be allowed.
In as much as two physicians versus an advanced registered nurse practioner opinions differ it is my opinion that this information would qualify under the benefit of the doubt rule.
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2004).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz
v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001);
38 C.F.R. § 3.102 (2004). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is not applicable.
Ortiz, 274 F.3d at 1365
Issue 3. Entitlement to service connection for a heart disorder.
As the current medical evidence does not support a grant for entitlement to service connection for a heart disorder, I am in agreement with your current denial. Should future medical evidence be supportive of this issue I will reopen the claim at that time.
Issue 4. Entitlement to service connection for a neck disorder.
I disagree with the denial of service connection for a neck disorder. I request compensable service connection due to the medical evidence of record, diagnosed as DJD/arthritis.
As noted in a July, 2003 C&P examination performed by Jan Hischfield MD that he reviewed the C-files and medical records that were pertinent to this exam and stated,
"Diagnostic Impression: 5. Cervical neck strain with suspected cervical degenerative disc disease, traumatic in origin, with chronic pain and decreased range of motion.
Remarks: It is my medical opinion that her cervical neck symptoms of pain and discomfort, and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely related to the three traumatic events she relates from her military experience", (enclosure 4) .
These events are well documented in my service medical records and Dr, Jan Hirschfield has provided medical rationale with his opinion linking the claimed condition to military service.
Again C&P examiner Rockwell stated her opinion/rational that the DJD/Arthritis was less likely a result of the service was based entirely upon no diagnosis during service or within year of separation of service she was unable to make a direct connection. I refer to 38 CFR 3.303 (d).
It is my belief Dr Jan Hirschfield's opinion was based on sound medical priniciples and a review of my records while examiner Rockwells was based on a lack of diagnosis. This is a direct violation of, the determination as to whether the requirements for service connection are met, is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.
In addition, as discussed and certified in the BVA transcripts, in the 1978 C&P examination, which was only four months after separation, the medical evidence states that I have limitation of motion, pain and muscle spasms in
the cervical region, (enclosure 5).
In 1978, the Schedule of Rating Disabilities provided a ten percent evaluation when there was evidence of muscle spasm.
This is evidenced in a BVA decision, http://www.va.gov/vetapp93/files1/9300799.txt
"The impression was negative cervical spine. The VA physician diagnosed paravertebral muscle spasms of the cervical spine, mild. In a January 1978 rating action the veteran was granted service connection and assigned a 10 percent rating for paravertebral muscle spasm of the cervical spine."
I am aware this BVA decision does not set precedent; I only point it out in reference to, the Schedule of Rating Disabilities in existence and to be applied in 1978.
In transcript's from my BVA Hearing dated May 26,2006, on page 25 Chairman Jonathan Day agreed with this statement as being "quite correct".
(enclosure 6).
With this acknowledgement, I’ am perplexed as to why the AOJ,BVA and/or the AMC, has not themselves, called a clear and unmistakable error on the prior rating decision dated October 1978, that denied service connection for a neck injury, as it clearly did not properly apply the regulation from the Schedule of Rating Disabilities in effect during
this 1978 timeframe.
I feel the medical evidence and rationale is clearly in support of the claim, provides a nexus linking the claimed condition to military service, and at minimum is in equal balance.
I feel that this medical evidence would qualify under reasonable doubt .
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2004).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz
v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001);
38 C.F.R. § 3.102 (2004). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is not applicable.
Ortiz, 274 F.3d at 1365
Issue 5. Entitlement to an effective date prior to July 30, 1999, for the grant of entitlement to service connection for post-concussive headaches.
Please see the information and disagreement below. This disagreement goes for Issues 5 and 6.
Issue 6. Whether a clear and unmistakable error was committed by rating decision dated October 31,1978, which denied entitlement to service connection for headaches.
I disagree with the denials of Issues 5 and 6.
On the two inextricably intertwined issue's of 5. and 6.
Entitlement to an effective date prior to July, 30, 1999 for the grant of service connection for post-concussive headaches and clear and unmistakable error committed in the prior rating decision dated October 31, 1978, that denied service connection for headaches.
I do not contend and firmly acknowledge that I understand, the Reasonable Doubt Doctrine is not to be applied in a claim for clear and unmistakable error. In no way, am I claiming the Doctrine of Reasonable Doubt in my claim of clear and unmistakable error.
The rating decisions promulgated by the Regional Office, the BVA and the AMC continue to include headaches as a symptom of seizure and reflect inclusion of disability associated with both the epileptic seizures and headaches which are shown in the record to be separate conditions. Headaches shown in service medical records are diagnosed as muscle tension headaches (enclosure 7).
My VA form 21-526 date stamped July 31, 1978 requested service connection for:
hearing loss, otitis media, concussion, lumps on back of neck, headaches, dizziness, back condition and a neck condition. All claimed disabilities were denied by rating decision dated,10-31-1978.
The medical evidence contained in the October 1978 rating decision, clearly documented recurrent headaches as evidenced in service medical records.
Had the Schedule of Rating Disabilities been applied, the claim for headaches
Would have been granted.
Of record is a Notice of Disagreement dated 1/15/1979 - in this Notice of Disagreement seizures were added to the list of claimed disabilities.
Medical evidence, in the form of in-patient VA pharmacy records,
dated 1/11/1979 through 1/20/1979, (enclosure 8) continued to document medication for treatment of recurrent headaches and neck pain.
Of record is VA form 21-4138, Statement in Support of Claim, date stamped "Disagreement Jan 25 1980".
The very first sentence states, "I appeal your decision denying service connection for headaches and dizziness, residuals of concussion and seizures. All my service records show the dizziness, headaches, blackouts, memory, lumps on neck and head" (enclosure 9).
Of record is Regional Office Statement of the Case, dated February 6, 1980 and states,
"Decision: Service Connection for claimed headaches and dizziness and residuals of concussion and seizures is not established" (enclosure 10).
Of record in my claims file is a request stating:
" Dear Sir: As a veteran being hospitalized at the VA hospital, it is requested that the hospital report be secured for evaluation of my claim". It is date stamped Received Adjudication Division Feb 20, 1980, VA Regional Office,St. Petersburg, Fla.
(enclosure 11).
Of record, on July 15, 1980 a Hearing was held before Rating Board 211 of the Veterans Administration, St. Petersburg Regional Office.
This Hearing was held before a panel of three members. As documented in the Hearing transcript's the issues listed were service connection for residuals of post concussion syndrome, dizziness, headaches and seizures.
The issue of headaches are addressed in the Hearing Transcripts .
The result of this Hearing is contained in the Rating Decision dated 8-4-80, which granted service connection for Diagnostic Code 8910, Seizure Disorder, evaluated at
40 %, with an effective date of 6-6-1978, day following separation.
The 40 % evaluation granted for seizure disorder is not inclusive of headaches, it is strictly for the seizure disorder and the percentage level is evaluated by the number and frequency of seizures as required by the Schedule of Rating Disabilities.
Headaches are a completely separate issue.
Of record, in a 2000 VA C&P examination for a different disability, the examiner also opined on my headaches.
A Regional Office Rating Decision dated 05/19/2000 granted service connection for headaches with an evaluation of 10 percent effective July 30, 1999. The decision states, "VA examination shows the veteran has a chronic headache which appeared to be a muscular or tension type headache. This is repeated cumulative medical
evidence as that in service medical records and that of record in the 1978 denial for headaches. It is not new and material evidence by VA definition. I did not request to re-open this claim and did not present new and material medical evidence.
I filed a Notice of Disagreement for an earlier effective date for headaches.
The Regional Office responded in Rating Decision dated 06/27/2001, by claiming the grant of headaches was a clear and unmistakable error on the part of the VA.
"The veteran has been service connected for headaches as part of her post concussion syndrome since 6-6-1978. She was given a separate rating for headaches in error by rating dated 5-19-2000. As stated in the proposal to terminate the separate service connection, a separate evaluation is prohibited.
Service connection for headaches were terminated effective August 31,2001" (enclosure 12).
I filed a Notice of Disagreement with this decision and requested a DRO Hearing.
The DRO Hearing resulted in Rating Decision dated August 11, 2003 and states,
"Although it is clear that your current neurological symptoms arose from the same event(s) during service, the pathology of your idiopathic seizure disorder and your claimed headaches represent separate disease entities and a separate
evaluation for each is warranted". The DRO continued with the same effective date of July 30, 1999.
I contend I did not reopen this claim with new and material evidence. The VA continues to state I have been service connected for headaches since 6-6-1978, day following separation.
But not for the error made in the Rating Decision dated October 31, 1978, I would have been in receipt of this additional 10 percent service connected compensation for many years
As the seizures and headaches do not coincide with one another. The veteran is intentionally entitled to a separate rating for headaches to the extent that a disability warranting a separate rating is shown. In fact, the assignment of multiple
separate ratings for the same service-connected disability is required in circumstances where the ratings are not "duplicative of or overlapping with" the symptomatology of other elements of the service-connected disability.
Esteban v. Brown, 6 Vet. App. 259, 261-62
Under VA regulations, if duplication and overlapping are avoided, separate ratings do not contravene a VA regulation that prohibits the pyramiding of ratings for service-connected disabilities. 38 C.F.R. § 4.25
I thank you for your dedication to veterans and your consideration on the above matters.
Sincerely,
Carlie passed away in November 2015 she is missed.
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