3 Week Progress Report

[NavyWife]

I've been at this for only 3 weeks, but due to the awesome folks here at Hadit, I have learned an immense amount of information already. I've been glued to my laptop averaging 8 hours per day for the last 3 weeks. I think my eyes are going bad from reading BVA cases, however!!! haha

Here's the rundown on what I've done so far:

#1 Mailed official application form 21-526EZ as a Fully Developed Claim using certified mail, return receipt requested. At this time, I am only requesting an evaluation for 2 issues. Increase for previously service connected seizures currently with a lowball rating of 20%. Also, claiming TBI. There are definitely more issues, but I want to start with the 2 that are affecting him the most. Also, I feel we have good medical evidence and service records to prove service connection for the TBI due to a fall and head injury he sustained while on active duty. I also included a Statement of Support regarding the frequency of seizures. I opted not to include a doctor's report of the frequency at this time, because I had read once epilepsy is service connected, they can accept medical OR lay evidence regarding the frequency. If they want the medical evidence also, then they can schedule a C&P exam.

For the TBI, I had read VA will want to do their own evaluation, nexus and their own diagnosis, so I did not include any medical evidence for that either. However, I had the veteran write up a list of his symptoms that are bothering him that also match what is found in the 38 CFR Schedule for Rating Disabilities guide under TBI (8045).

Additionally, I included the dependency form 21-686c. I filled it out completely, but opted not to include a copy of marriage certificates or birth certificates for the kids. I've heard they are trying to streamline the dependency additions and only need those certificates in certain cases.

We will see if my minimal approach works or not. I figure if they need more documents, they will mail me a letter requesting them.

#2 After about 2 weeks of phone calls, I was finally able to get the logon for the EBenefits Premium account. I am hoping that site will be useful at some point in the future.

#3 I requested his records from NPRC using the online system and followed up with a faxed signature page. https://vetrecs.archives.gov/VeteranRequest/home.html

#4 I sent a written letter to the VARO requesting a copy of his c-file.

#5 Bought this VA claims guidebook on Amazon from Asknod

http://www.amazon.com/s?ie=UTF8&field-author=Asknod&page=1&rh=n%3A283155%2Cp_27%3AAsknod

#6 read and reread until I thoroughly understood the rating guide VA uses for the conditions he is claiming using the Online Code of Federal Regulations

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=1fba67e9494507e5b9f58baa3f412824&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

TO DO NEXT WEEK:

Take him to the VA medical center where he was last treated and attempt to get his personal medical records.

Take him to a VA medical center and do the in-person proofing to get the Premium account for MyHealthE Benefits website.

Start preparing my case for the denial that VA usually hands out. (I don't expect to be denied for the increase in seizures. But I expect they will try to deny the TBI)

Edited October 17, 2013 by NavyWife

[carlie]

I have a feeling he is currently rated under a hyphenated DC

such as 8910/8045.

[NavyWife]

Go figure, they want to keep that form top secret!

Carlie,

Since the seizures are already service connected & the ratings guide goes by frequency only, can you think of ANY reasons they would try to deny the increase for seizures?

If they decide to grant the increase, will they start his payments at the higher rate as soon as they decide, while they're still working on the TBI claim?

[NavyWife]

He is rated for 8910 only.

That's a great idea to search the BVA for TBI after 2008. I will do that.

I'm hoping to have some of his records by next week. I will post asap. The only thing I have is a letter from 1997 saying he is rated at 20% for 8910. It is a single page and does not say how they came to that number.

Edited October 17, 2013 by NavyWife

[carlie]

Go figure, they want to keep that form top secret!

Carlie,

Since the seizures are already service connected & the ratings guide goes by frequency only, can you think of ANY reasons they would try to deny the increase for seizures?

If medical or lay evidence is submitted, for an increased evaluation of SC'd seizures due to frequency,

and the decision maker finds this evidence to be credible and probative, then an increase should be warranted.

A new C&P exam might be needed.

If they decide to grant the increase, will they start his payments at the higher rate as soon as they decide, while they're still working on the TBI claim?

It will most likely be processed together.

JMHO - carlie

[carlie]

He is rated for 8910 only.

That's a great idea to search the BVA for TBI after 2008. I will do that.

I'm hoping to have some of his records by next week. I will post asap. The only thing I have is a letter from 1997 saying he is rated at 20% for 8910. It is a single page and does not say how they came to that number.

NW,

This is my train of thought.

When you get a copy of that actual rating decision, it will either have the reasons and bases

for the decision or a narrative for the decision.

This should show WHY they granted seizures as SC'd.

Hopefully it will state something like - seizures are SC'd due to brain trauma / concussion / head injury / fall.

Hell it might even contain some kind of statement relating to additional symptoms / conditions, etc . . .

So might the SMR's and original copy of the C&P exam used in that rating decision.

That evidence would CLEARLY open the door for an easier chance at TBI - SC.

Something else, I believe I pointed out earlier to you is:

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=53e65b731a212b27b244fa7475784ea9&rgn=div8&view=text&node=38:1.0.1.1.5.2.110.67&idno=38

The Epilepsies:

A thorough study of all material in §§ 4.121 and 4.122 of the preface and under the ratings for epilepsy is necessary

prior to any rating action.

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=53e65b731a212b27b244fa7475784ea9&rgn=div8&view=text&node=38:1.0.1.1.5.2.110.63&idno=38

§ 4.121 Identification of epilepsy.

When there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized).

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=53e65b731a212b27b244fa7475784ea9&rgn=div8&view=text&node=38:1.0.1.1.5.2.110.64&idno=38

4.122 Psychomotor epilepsy.

The term psychomotor epilepsy refers to a condition that is characterized by seizures and not uncommonly by a chronic psychiatric disturbance as well.

(a) Psychomotor seizures consist of episodic alterations in conscious control that may be associated with automatic states, generalized convulsions, random motor movements (chewing, lip smacking, fumbling), hallucinatory phenomena (involving taste, smell, sound, vision), perceptual illusions (deja vu, feelings of loneliness, strangeness, macropsia, micropsia, dreamy states), alterations in thinking (not open to reason), alterations in memory, abnormalities of mood or affect (fear, alarm, terror, anger, dread, well-being), and autonomic disturbances (sweating, pallor, flushing of the face, visceral phenomena such as nausea, vomiting, defecation, a rising feeling of warmth in the abdomen).

Automatic states or automatisms are characterized by episodes of irrational, irrelevant, disjointed, unconventional, asocial, purposeless though seemingly coordinated and purposeful, confused or inappropriate activity of one to several minutes (or, infrequently, hours) duration with subsequent amnesia for the seizure.

Examples: A person of high social standing remained seated, muttered angrily, and rubbed the arms of his chair while the National Anthem was being played; an apparently normal person suddenly disrobed in public; a man traded an expensive automobile for an antiquated automobile in poor mechanical condition and after regaining conscious control, discovered that he had signed an agreement to pay an additional sum of money in the trade. The seizure manifestations of psychomotor epilepsy vary from patient to patient and in the same patient from seizure to seizure.

(b) A chronic mental disorder is not uncommon as an interseizure manifestation of psychomotor epilepsy and may include psychiatric disturbances extending from minimal anxiety to severe personality disorder (as distinguished from developmental) or almost complete personality disintegration (psychosis). The manifestations of a chronic mental disorder associated with psychomotor epilepsy, like those of the seizures, are protean in character.

The two regs above are current and were current in his rating decision, but without knowing

the whats and whys of the rating decision, there is no way yet - to know if these things were considered.

Why do I have any concern with this ?

Because, in my mind the original C&P exam and SMR's that were used to grant SC for seizures COULD include

something to the effect, something like,

veteran appears to be having anxiety that relates to his seizure condition, blah, blah,blah . . .

then THAT - would be something that MIGHT be CUE-able, from the prior decision.

Yes - I'm a goof ball and love to rip claims / issues, to shreds -

I approach claims / issues from both sides - the claimants and the VBA decision makers.

[Philip Rogers]

You sound like you've got your game on. The only other suggestion I have is that you purchase the Veterans Benefits Manual (VBM). It's the only guide you'll ever need for dealing w/VA claims. The new 2013 edition is due out any day, now.

http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=12734

It's a little pricey but well worth every penny (about $150 paperback)

pr