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?

[NavyWife]

NavyWife,

What is the cause of his seizures ?

unknown etiology-that is what his med recs say. He has the grand mal seizures as well as petit mal. His rating code is 8910 for grand mals. You brought up a good point in your earlier post about head injury. His was actually the other way around. One of his seizures caused a long fall down a weapons shaft on an aircraft carrier. He has a documented head injury to the right occiput (back of the head) with sutures required, noted in his SMRs. After that day, they never let him back on his ship and started the proceedings to medically discharge him. He was really devastated, because he had planned to make the Navy his career. :(

arng11--

thank you for your wise words! I just recently got a copy of the c-file and now I am pissed off and have tons and tons of questions!

[carlie]

NavyWife,

Damned - I was in hopes he had a documented head injury as the cause of his seizures.

That would open the door to additional issues.

Not damned that he didn't have a head injury prior to seizures tho.

OK - it looks to me like he's stayed at 20 % SC all of this time.

Is there any residual medical issue secondary to the seizure when he injured his head ?

Does he have more seizures than the current 20 % criteria states ?

If yes, is he documenting them ?

Does he continue to get medical care for seizures ?

Does he take RX meds for his seizures ?

If yes, do the meds create any additional (secondary) medical condition ?

Has he been denied any employment opportunities due to having seizures ?

There are several types of employment that the employee must be bondable

to get the employment.

To my vast knowledge on this subject, in all the cases I personally know of,

Seizure patients are NOT bondable.

Is he allowed to have a driver's license or disallowed due to seizures ?

[carlie]

I believe the following is why he was dropped to 20 %.

At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8

minor seizures weekly = 40

At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months = 20

The reduction should have been Noded at that time and evidence submitted to

continue the 40 % evaluation.

Keep in mind that at that time since he had not gone and gotten any treatment

the then current medical evidence of record supported the 20 % versus the prior,

original 40%.

At least this is what I get out of it.

[NavyWife]

I'm sorry Carlie, I didn't give the full background here. He had his first documented grand mal seizure inservice June 1989 while walking across the street. He was picked up by ambulance & then he even had to pay $85 for the ambulance ride!! Haha there's a receipt for it in his cfile!

Anyhow, at that time they said "possible seizure condition" but did not put him on any anti-seizure meds. Then 9 months later, in April 1990 he had his 2nd documented grand mal in service. That is when he fell & hit his head.

So he was at the 40% qualification of 2 in a year. That is what the navy discharged him with.

And "yes" to most of your questions above.

He has continued at the 20%. After this original ratIng, he tried 3 times to get back to 40%. Each time was denied. Based on the evidence at his last C&P, he had just had a seizure 3 days prior to the exam & stated that & it's on the record. That should have qualified him for the "1 in the last 6 months" 40%. However, the rater ignored that evidence. Instead she pulled up old VA notes from a year earlier, where he had stated, "usually have seizures about once per year". That was in 1997 & that's when he finally gave up.

[ArNG11]

I know I may be repetitive. But the evidence in his service medical records is a key strong point here. It's documented in his service medical records which is a big plus. The avenue of attack I guess is like most others, NOD, and CUE. Since the decision is older than a year NOD is not really an option as far as retro, however, CUE may be an avenue. Berta /Carlie although a tough pickle isn't this an avenue for her to pursue in tandem with an IMO. If he met the ratings then with the inservice medical records then couldn't Navywife pursue a CUE? It is opening a big can of worms, with the stricter provisions but would it not be worth the pursuit? The VA ignores evidence all the time until they get caught and then they try to strike a deal before it goes up the chain where the law gets laid down. I don't know. I'm not experienced in the VA shenanigans but they can only ignore the law and regulation so far. I am starting to learn what becomes effective in winning your claim, INSERVICE MEDICAL EVIDENCE. Along with IMO, IME, and lots of lay evidence. The VA can try to weasel their way out of anknowledging evidence only for so long.

Edited March 28, 2014 by arng11

[FormerMember]

You will learn that one of the most potent forms of denial is ignoring evidence legitimately submitted that is in the c-file. If VA wins this first round and you toss in the towel, for all intents and purposes they won because they were right. When appealed, the BVA often just rubber stamps it unless its an Acting Law Judge who wants to get it anally perfect. You can get a win there under that limited circumstance every time. Some have been there so long like Mark Hinden that they simply use what the RO used and duplicate. When you get to the CAVC and the charade is over, the OGC quickly beg for a joint remand to "correct" their error. This is SOP and a VBA means test to discover your resolve to pursue it. The more money on the table, the greater the chance this will be the case. They fought Leroy Macklem up to the Fed. Circus and still wanted another shot at redoing the denial a fourth time after his three wins. That was for 100% CUE back to 1950. Great case.

a