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]

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.

63,

I haven't seen anything posted stating that the navy medically retired him.

[NavyWife]

I have a few more questions.

He had 3 more denials after this one for the same thing. He felt his seizures should be rated at the 40% that the Navy medically retired him at.

His 2nd denial, there was again no C&P offered. They denied him based on a "lack of VA records". He was being seen every 6 to 12 months by VA at that time. I don't know why VA couldn't get his VA records. Certainly, they never advised him he could get the records himself & then give them to va. All they did was send him another denial letter.

On his last denial, in 1997, he finally was allowed a C&P, where he stated his last seizure was 3 days prior to the exam. (1 seizure within the last 6 months or 2 in the last year, is the criteria for 40%). However, they denied him for the FOURTH time, based on a 9 month old VA appt for refill of anti seizure medication, when the doc. wrote down that he said he generally had one seizure a year.

Is it the law that they can pick and choose WHAT evidence they want to use?

What happened to that equipoise thing?

What happened to the benefit of the doubt thing?

Are those concepts just things written in some manual, but things VA really doesn't have to adhere to?

Is it the law that they can use OLD evidence, instead of the most recent evidence, from their own C&P exam?

Where is their accountability?

No wonder they did not want to release his Cfile!

He gave up finally after 4 attempts & 7 years. This time he wants nothing to do with VA. But I am not afraid of them. I now understand their tactics. I will see this through no matter how long it takes. They could take advantage of him back then because he didn't know any better. And his VSO was worthless.

This time around I have the Internet.

This time around I have the Veterans Benefit Manual.

And this time around I have hadit.com

And after I get him to the 100% he rightfully deserves and earned, I'm going to help as many vets as I can get to 100%, too!

[63SIERRA]

63,

I haven't seen anything posted stating that the navy medically retired him.

He had 3 more denials after this one for the same thing. He felt his seizures should be rated at the 40% that the Navy medically retired him at.

violla

Edited April 1, 2014 by 63SIERRA

[63SIERRA]

Are we in concurrance here?

[63SIERRA]

Is he now on and has he been on anti seizure medication?

I was under the understanding that they cannot rate based on aafter medication results. like for instance, if you have high blood pressure, because you have diabetes, from agent orange or whatever. you file a claim , you get approved. OK you take your meds, and now your pressure is back to normal. They cant pull the rug, now that the meds have it somewhat better.

Same with erectile dysfunction. The give u 4 magic pills a a month to help your condition, but they dont stop comp.

Edited April 1, 2014 by 63SIERRA

[63SIERRA]

can someone explain this in ways that a dumb coon ass like myself can understand?\\

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. “