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?

[63SIERRA]

to me, it sounds like the va is supposed to thorougly consider everything presented, that they can get ahold of or that of which is presented to them. Thats why when I have CP exams, if they dont ask, I make sure and voulenteer the information, so they cant say, they werent told. My wife is sitting right there as a witness that I told them as well./.

The VA like to have CP exams when they can help them deny, but not when it will help the vet . Its like they pick and choose what they want, to get the results they want. So here is the question. WHAT IS PROTOCOL FOR OBTAINING EVIDENCE.? there must be some rhyme or reason to why they request CP sometime,s and sometimes they dont. To me it would seem that being FREQUENCY is the meat and potatoes governing the comp scale when it comes to seizures, a CP exam should have been done.

Edited April 1, 2014 by 63SIERRA

[ArNG11]

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

It's law and regulation, but means nothing if the VA does not abide by it.

[ArNG11]

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

Out of curiosity, until I look up the stats, how long did it take this individual to go through the process?

[63SIERRA]

It's law and regulation, but means nothing if the VA does not abide by it.

Duty to assist is misleading that law basically states that they have duty to assist if you tell them where to look.

I always tell them in any correspondence to look at ALL of my service medical records, from 1990 to 1995 IN THIER ENTIRETY.

That pretty much puts them in a situation, If they fail to consider anything in my records in that time frame, they shot themselves in the foot.

The Ro wants you to give specific dates, I dont do that, because if you forget something, it gives them an " out" to stick it to you.

[JT24usn]

38 cfr 3.159? Will that help?

Edited April 1, 2014 by JT24usn

[carlie]

63,

On the medically retired issue, I only had what had been posted so far, to go by,

"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."