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]

"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"

I completely disagree.

I used that reg to win a CUE claim and also to get a double DRO review and a very fast AO award 2 years ago ,mere weeks after using this tactic....

But thats OK as to your post...it works for me.....I have another claim pending on the basis of that reg as well and I think it is the cat's meow.

It isn't a Duty To Assist regulation...it is the applied legal policy of the VA.

geeeeezzzzz

[Berta]

I already posted my CUE awards here. Maybe this will help others understand the evidentary requirements of 38 CFR (and M21-1MR)

There are so many examples of this reg in CUEs awarded at the BVA that I just had time to quickly find this one:

In part:


:
" In
this case, had the RO applied the proper law and regulations
and considered all evidence in evaluating the veteran's claim
in 1989, there is no question that the evidence was
sufficient to support a grant of service connection. All the
elements needed to grant service connection were present in
1989, and the denial of the claim was clearly erroneous. "


ORDER

As the September 1989 rating decision was clearly and
unmistakably erroneous, service connection is hereby granted
for the veteran's bilateral hearing loss as of June 26, 1989,
subject to the governing regulations pertaining to the
payment of monetary benefits.

http://www.va.gov/vetapp05/files1/0506205.txt 6 years of retro.

38 CFR
§4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability.

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI
Change 118

What I dont see mentioned in the above vet's claim is reference to any documented medical evidence that the 40% should have continued,post service or after the dates the VA stated ,that rendered the 20%.

I do not see this as a basis for a CUE claim..

Edited March 27, 2014 by Berta

[NavyWife]

What I dont see mentioned in the above vet's claim is reference to any documented medical evidence that the 40% should have continued,post service or after the dates the VA stated ,that rendered the 20%.

Yes, Berta you are right, there was no documented medical evidence sent to VA.

I think the part I'm getting stuck on here, is aren't they supposed to ask for or seek out that evidence?

They did not schedule a C&P.

They did not ask for lay statements regarding frequency.

They did not ask for medical records.

Also, aren't they supposed to consider the whole record of evidence? At that time, his whole record of evidence was his SMRs. The frequency of seizures in his SMRs warranted the 40% rating.

The only thing that happened between his seizures in service and the time his claim was adjudicated, is that time passed, therefore, there was no new record of a seizure within the last 6 months.

I don't want to waste my time on something baseless, but this decision doesn't add up for me.

[carlie]

NavyWife,

What is the cause of his seizures ?

[ArNG11]

The problem with any VA claim is that if it is not in the service medical records they don't acknowledge it existed then. And that it is a problem now. From my experience even when you have a plethora of evidence in your favor, like private medical records, unless the acknowledge it and rate a claim with the whole body of evidence, then you will always loose unless you can catch them in the act. Getting a full and correct copy of your c file after a decision or denial is IMPERATIVE, to your survival if you are beat these evil doers. This is my opinion from my own experiences.

Edited March 27, 2014 by arng11

[Berta]

Seth...(bluenote).

I apologize to you if one of my posts above here seemed abrupt.

(the geeeez comment) I think it is a shame that vets and us other claimants have to think out of the box sometimes,in order to get VA to do the right thing.

My friend at NVLSP (head Nehmer lawyer) told me to use the 4.6 as part of the GCY tactic since it had worked for me before.

You have always provided excellent info here and I commend the work you do for vets.....and appreciate the help...we all need all the help we can get.....

Navywife stated:

"The only thing that happened between his seizures in service and the time his claim was adjudicated, is that time passed, therefore, there was no new record of a seizure within the last 6 months."

Has his medical evidence raised to 40% since then?

I think the VA decision was correct.

Carlie askes the same question I have too