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?

[rosypalm]

Don't quit.

[Slowlane]

Duty to Assist...............Joke

[63SIERRA]

Do some reading on seizures. a person can be seizing for hours and you wont even know it, It doesnt always manifest into shaking, choking, physical manifestations ect. If they hook brain scan wires up, then they can see. People can seize for long periods of time, and not even realize it. hey can seize in thier sleep. They will be very tired after a long mild seizure.

[63SIERRA]

seems to me that the fact that the navy medically retired him, soley on the seizures, and at the 40 percent rate, would be VERY STRONG evidence , especially in the absence of any other evidence, no cp exam. This ended this mans career.

[bluenote]

Berta,

Understand the general application of Section 4.6 (consideration of evidence), but gentleperson's bet that the basis for CUE was something more specific (for example, VA ignored a medical opinion in the record assessing etiology as SC without contrary evidence) in nature than that. The Board may have cited 4.6 in a string cite (although I have never seen this). Regardless, if the VA granted a request for revision based with that section as a legal predicate, kudos to you :)

Asker, one thing to be aware of is the evaluation of a request for revision (CUE) will be based upon the record and laws that applied during the original adjudication of the claim. Consequently, after pulling the operative medical evidence available at the time of the original adjudication you'll need to go back to the CFR, specifically that diagnostic code, that existed at the time of the original adjudication. Link to obtaining CFR at www.gpo.gov. For even older CFRs (trust me this does occur), local law school will have copy, or can otherwise be obtained through internet.

Good Luck,

Seth

[carlie]

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.

Being that he was granted service connection and discharged due to seizures his SMR's no longer hold relevance

on the issue of seizures - at this point.

jmho