Is This A Fair Denial?

[NavyWife]

Since I did the EECB and was finally able to get a copy of hubby's cfile, I found his original rating decision. I have posted the exact wording below:

We have carefully reviewed your claim for service connected disability compensation. The evidence we considered and the reasons for our decision are contained in the attachment to this letter.

The evidence establishes the following service connected conditions:

Condition Percent Effective Date

Seizure disorder 40% 9/1/90

Seizure disorder 20% 11/1/90

Letter Attachment:

The evidence we considered in making this decision was

Service medical records

The reasons for our decision are:

The TDRL evaluation of 40% was based on a major seizure within the past 6 months (April 1990).

Since there has, as of February 1991, been no seizure in the past 6 months, the evaluation as of October 1990 is 20%.

So, I looked at his service medical records and the last entry date was in April, a few days after his last seizure. He was medically discharged due to seizures in August 1990 and rated at 40% by the Navy. Since he was no longer in the military of course there would be no more records of any seizures in his SMR.

After he filed his application, He was never given any C&P exam. He was never asked for a lay statement regarding his latest seizure. Nothing...It appears all they did was look at his old service medical records.

Is this a fair decision? What are the regulations that guide a fair decision?

Is this a CUE?

[Berta]

"Since he was no longer in the military of course there would be no more records of any seizures in his SMR."

Did he have and did the VA have, proof of seizures AFTER the last entry

"Since there has, as of February 1991, been no seizure in the past 6 months, the evaluation as of October 1990 is 20%."

In other words did the VA have as evidence, medical records that make that statement false?

They only list the SMRs.

CUE is like the Watergate question...what did they know and when did they know it?

If the VA did have documented medical evidence that he did fit into the higher Seizure rating of 40%,(whether from VA med recs or private records, and he can prove they had that evidence, then that is a CUE.


I feel the best regulation that guides a 'fair decision'
is 38 CFR 4.6 which I have posted here many times.

That regulation holds our evidentary rights.

If VA had no additional evidence of other seizures,
then I could seee why they didnt give him a C & P exam at that time.

This decision was rendered before the VCAA came about, which,since year 2000, now forces the VA to tell the claimant in writing exactly what evidence they need to send in.

Edited March 26, 2014 by Berta

[NavyWife]

To clarify, he was medically discharged 9/90 at 40% by the Navy and placed on TDRL- temporary disability retired.

At the time he was discharged he then filed his claim with VA. So this was his first decision. To me, it looks like they reduced him from his 40% given by the Navy. And they reduced him arbitrarily, without asking him for any evidence or even attempting to get evidence themselves.

Seizures are ONLY rated based on frequency.

It looks to me like they listed the "evidence" of the SMRs, just to have something to list in that box. But really, it was NO evidence. He was out of the military, so nothing new would be listed in the SMRs.

They state" there have been no seizures in the last 6 months". But how do they know? They never asked him in a C&P. They never asked him to submit evidence of recent seizures...

Between 9/90 and 2/91, 5 months, he was not seen at VA-there was no reason to be seen.

Also, he wasn't even asking for an increase. This was his 1st VA application and he was just asking for his benefits to get started. Instead, VA took this opportunity to reduce him from the 40% the Navy set him at, down to 20% without evidence.

I will look over Reg 4.6 and see if there's anything there.

Thanks very much Berta.

Edited March 27, 2014 by NavyWife

[carlie]

Since I did the EECB and was finally able to get a copy of hubby's cfile, I found his original rating decision. I have posted the exact wording below:

We have carefully reviewed your claim for service connected disability compensation. The evidence we considered and the reasons for our decision are contained in the attachment to this letter.

The evidence establishes the following service connected conditions:

Condition Percent Effective Date

Seizure disorder 40% 9/1/90

Seizure disorder 20% 11/1/90

Letter Attachment:

The evidence we considered in making this decision was

Service medical records

The reasons for our decision are:

The TDRL evaluation of 40% was based on a major seizure within the past 6 months (April 1990).

Since there has, as of February 1991, been no seizure in the past 6 months, the evaluation as of October 1990 is 20%.

So, I looked at his service medical records and the last entry date was in April, a few days after his last seizure. He was medically discharged due to seizures in August 1990 and rated at 40% by the Navy. Since he was no longer in the military of course there would be no more records of any seizures in his SMR.

After he filed his application, He was never given any C&P exam. He was never asked for a lay statement regarding his latest seizure. Nothing...It appears all they did was look at his old service medical records.

Is this a fair decision? What are the regulations that guide a fair decision?

Is this a CUE?

Do you have any medical evidence that supports a 40 % evaluation, during the

dates stated - that was not of record when the reduction took place ?

Personally, I do not see a CUE at this point, from what is posted here.

What % is he currently evaluated at for his SC'd seizures ?

What was the cause of his seizures per the original rating decision ?

Was it by chance a hyphenated diagnostic code such as, 8910/8911-8045 ?

If yes, that was for seizures due to head trauma.

In Oct 2008, the DC 8045 was re-vamped mucho - mucho -mucho . . .

to allow more compensation due to TBI.

[carlie]

Seizures are ONLY rated based on frequency.

There is also compensation criteria for:

Note (1): When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent.

This rating will not be combined with any other rating for epilepsy.

What are his SC'd seizures a result of.

If his seizures are the result of a head injury, there are more issues that can be SC'd such as Mental Health and Recurrent Tinnitus,

and Hearing Loss.

[bluenote]

Navywife:

Failure to provide a C&P examination at the time of the original adjudication of the claim cannot form the basis for a request for revision (CUE). If your issue is rating percentage for an operative period of time in the past, the evidence at the time of the original adjudication of the claim would need to clearly and unmistakably demonstrate that the individual was entitled to a higher rating percentage for that period of time (i.e. no factual dispute between then-existing medical records). In order to figure out what evidence was available during the prior adjudication, look towards date stamps (mixed bag depending on the RO), dates of medical examinations, and - frankly - the order that the documents were placed in the C-File.

Section 4.6 and other provisions regarding evidentiary weight of evidence and normal burdens, do not apply in the context of a request for revision (CUE).

[Philip Rogers]

I'm sorry but I'm going to disagree w/everyone here. I feel the VA should have provided a him w/a C&P exam, as this was his initial claim, otherwise they should have rated him the 40% that the Navy retired him at. They had no basis for any rating except the 40%. jmo

You can try for a CUE but I think it was a "grave procedural error," by not providing him the C&P exam.

pr