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?

[carlie]

Navywife,

I'm getting pretty confused now.

From what you have posted here, your hubby did not have a head injury on active duty.

From what I remember he is SC'd for seizures originally at 40 percent then reduced to 20 percent.

You posted during a seizure he fell and hit his head, but made absolutely no mention of TBI -

which is a head injury.

On a post you made elsewhere it states the following - this is extremely confusing.

Please clarify.

Thanks

"I help my husband with him claim because of his TBI incurred in the Navy while serving his country, he can't concentrate and has poor memory. Add to that, he cannot type and certainly couldn't understand any of the verbiage in the Veterans Benefit Manual. "

[john999]

The VA has to consider all the evidence in the record. However, before 1990 there is no way you could prove the VA did or did not consider your evidence. Your C-File could have ten IME's in it, and the rater could have denied your claim, and never even mentioned any of your evidence before 1990. Now they have to mention the evidence as in listing it, but they still don't have to consider it. How do you prove they did not consider it? It is like proving a negative.

In my CUE the diagnostic code for my condition was changed between the time I filed and the time it was rated. When you find that glaring error in your file that is 40 years old you have to consider all the rules have changed since then and probably not in your favor.

Also, when the VA looks at your evidence they can give the same weight to the opinion of some goon working as the ward clerk as to your best IME in the CUE realm. When you try and go back in time to fix an injustice the entire weight is on you. Duty to Assist does not even arise in a CUE. When you have claims that may open up the process to thousands of pother vets in your situation you can be sure the VA is going to oppose. It will be easier to get money from GM before their bankruptcy than to get money from the VA.