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Va Called Cue On Themselves And Reduced My Sc


carlie

Question

Rating Decision

Department of Veterans Affairs St. Petersburg Regional Office

Page 1 06/27/2001

NAME OF VETERAN

C M

VA FILE NUMBER

SOCIAL SECURITY NR

POA

Disabled American Veterans

ISSUE:

1 . Final notice of termination of separate evaluation for headaches currently evaluated as 10 percent disabling.

2. Service connection for headaches separate from seizures and post concussion syndrome.

3. Service connection for hearing loss, right ear, otitis media and tinnitus.

EVIDENCE:

Service medical records, VA examination dated May 6, 2000.

Outpatient treatment reports from Bay Pines VA Medical Center for period of July 28, 1998 to August 9, 1999.

Outpatient treatment reports from VAMC Bay Pines from 4-12-00 to 4-25-01 /Statement from Dr. Layer from VAMC Bay Pines dated 6-2-00 and two letters dated 1-12-01 / An undated letter from the veteran with annotations by Dr. Layer received 5-9-01

A letter dated 1-12-01 was sent to Dr. layer requesting objective support for his medical opinions. As of this

date, no reply to this request for evidence has been received by our office.

DECISION:

1. Separate evaluation for headaches, which is currently 10 disabling, is terminated effective August 3 1,2001.

2. A separate service connection for headaches is denied.

3. Service connection for hearing loss, right ear, otitis media and tinnitus is denied.

REASONS AND BASES:

1. The separate evaluation of headaches is terminated effective August 31, 2001. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A clear and unmistakable error also exists if VA overlooked material facts of record. The benefit of the doubt rule is not applicable to a clear and unmistakable error determination since an error either undebatably exists or there was no error.

Incorporated by reference is the proposed termination dated 1-12-01 . It is reiterated here that headaches will

continue to be service connected under diagnostic code 891 1 for seizures and post concussion syndrome.

Rating Decision

Department of Veterans Affairs St. Petersburg Regional Office

Page 2 06/27/2001

NAME OF VETERAN

C M

VA FILE NUMBER

SOCIAL SECURITY NR

PDA

Disabled American Veterans

2. The veteran has been service connected for headaches as part of her post concussion syndrome since 6-6-78. She was given a separate service connection for headaches in error by rating dated 5-19-00. As stated in the proposal to terminate the separate service connection, a separate evaluation is prohibited.

This is essentially a duplicate claim. The veteran now contends that her headaches are not the result of head trauma but the result of neck trauma due to the same injury, which was a bunk falling on her in service that hit her head and neck.

Dr. Layer, in progress notes, has offered his opinion that Ms. migraines are unrelated to seizures and brain injury. He does not offer an alternate cause although he mentions that they may flare some with cervical degenerative joint disease. Dr. Layer has not offered any objective findings to support his opinion and it is given lesser weight than the veteran's long standing diagnoses of post concussion residuals. A review of the available medical records does not show that Ms. has a diagnoses of degenerative joint disease (DJD) of the cervical spine. A complete physical done by Dr. Layer 8-12-98 does not find DJD.

At the veteran's most recent VA neurological exam, 5-6-00 the assessment is residual concussion syndrome,

and the examiner states that the veteran has chronic headache which appear to be muscular or a tension type

headache. He is unable to give an etiology of her headaches without speculation. His speculation is that it is

as likely as not that the headaches are related to the head trauma in service.

. ___________ ..

3. Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for hearing loss, right ear, otitis media and tinnitus is denied because the record fails to establish any relationship between hearing loss, otitis media, tinnitus and any disease of injury during military service.

These issues were denied by rating dated 10-31-78 based on an exam done 10-5-78 which was four months after the veteran's discharge from service. The exam found clear ear canals, normal drums, no perforation scars or drainage. The drums are healthy looking. Hearing in both ears was within normal limits.

A claim for hearing loss of the left ear was denied by rating dated 5-19-00. New and material evidence was not submitted. The veteran now states that she claimed the wrong ear and is asking that the right ear be considered.

The veteran's VA physician, Dr. Layer has submitted a blanket statement on 6-2-00 that the veteran has multiple severe medial conditions which are more likely than not to be related to her military service. Among the listed conditions is chronic otitis media with moderate tinnitus, now requiring hearing aides and a history of tympanic membrane replacement surgery of the right ear. Dr. Layer writes the VA on 1-12-01

.Rating Decision

Department of Veterans Affairs St. Petersburg Regional Office

Page 3 06/27/2001

NAME OF VETERAN

C M

VA FILE NUMBER

SOCIAL SECURITY NR

PDA

Disabled American Veterans

asking us to expedite the Ms. claim and again cites a history of otitis media and tinnitus in the military.

It is not known if Dr. Layer had access to the veteran's military records or is basing his opinion on the veteran related history. Development was done to Dr. Layer asking what records were reviewed and asking for an explanation of his opinion since the veteran's in-service episode of otitis media and hearing loss was shown to be fully resolved by exam dated 10-31-78. To date Dr. Layer has not responded to our request.

Dr. Layer's opinion is sufficient to reopen these issues but not enough by itself to grant service connection in view of the other evidence of record.

Edited by carlie (see edit history)
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Navy,

This part of my post shows how friggin stupid va thinks vets are.

" The veteran has been service connected for headaches as part of her post concussion syndrome since 6-6-78."

I have NEVER been SC for post concussion syndrome, PCS is part of my symptoms. There is not a diagnostic code for PCS.

In 1980 I was granted SC for 8911 - seizures with the ED of 6-6-78 day followinf separation. Headaches under DC 8100 were DENIED on that rating.

Specifically showing headaches were NOT a part of the SC grant.

" She was given a separate service connection for headaches in error by rating dated 5-19-00. "

I filed a NOD on this rating decision for ED back to 6-6-78 day following separation. In reply VA cued itself and treminated the 10 % for 8DC8100 .

I filed a NOD on the termination and DRO re-granted the 10 %, but with the same ED as before.

" Hell, I feel like a steam roller went over me. "

carlie

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