How to proceed? Supplemntal Claim from Grand Mal Epilepsy DENIED

[Glenndawson100]

Hi there,

Recently actually yesterday the 21st of February the VA gave me notice that my supplemental claim had been decided and that they had sent out the letter that morning as well (meaning the decision was actually made on the 20th). This of course prompted me to check Ebenefits, where I saw no change in my rating. I'm currently rated at 40% for other issues. And in the past Ebenefits updated almost instantly leading me to believe that this supplemental claim was denied.

I originally submitted my Epilepsy claim back in august, it was denied about 4 months later due to conflicting phraseology given by one of my doctors (mind you i still have a diagnoses of Epilepsy with 15 witnessed Grand Mal seizures at this point). Once i got the original decision letter I contacted my County VSO's office and set up an appointment. After they reviewed everything they we surprised that my claim was denied as it has a clear nexus and on top of that falls under the conditions; that if they manifest within a year its considered service connected (I separated 02/01/2019, first seizure onset was 05/25/2019). They did review the 112 pages of evidence from my civilian doctors and did see the conflicting phraseology. They told me that if I could get my Neurologist to just confirm my diagnoses and say i was and have been under treatment since 05/25/2019 that we could submit a supplemental claim since that's the fastest route. So that's what we did. That brings us to now.

Under the standards for Epilepsy I was looking at a single rating of anything between 80%-100%. An 80% from 40% would have resulted in something Close to 90%. While i'm holding out, since in either case the retro pay (if my claim was awarded) would be greater then 20K that the additional signatures required are slowing down Ebenefits from updating, but as in most cases if the letter has sent and Ebenfits doesn't updated, 90% of the time you Claim/Supplemental/Appeal is denied. ( I mean correct me if I'm wrong).

Whats the moral of the story? No matter how much evidence you have to support you the VA will be the VA. I'm lucky that I'm rated for other conditions so that I can at least have the VA help me cut down on the costs of treatment for Epilepsy, but it would have been nice to have it service connected so that I wouldn't have to wait months on months for Neurology appointments since I don't have priority.

If any one has any information for me that might help moving forward, I'm all ears as once my letter is received and upon reading of the denial ill be filling an appeal.

[Glenndawson100]

3 minutes ago, Berta said:

Wait a minute-----I just realised the epilepsies are on the Chronic Presumptive list!!!!!

I apologize to you!!!!!

It is a long list and I sure never remember them all: and it is Very hard to find here in the search feature:

https://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_309.doc

Yousaid:

"They told me that if I could get my Neurologist to just confirm my diagnoses and say i was and have been under treatment since 05/25/2019 that we could submit a supplemental claim since that's the fastest route. So that's what we did. That brings us to now."

And you ARE falling under the Chronic presumptives!!!!!!

So as good as this sounds, some optimism is in order but we ll have learned how the VA 

can screw up anything.

Sorry I didnt check that list sooner for you. You did the leg work you needed to succeed!

Well after reading everything, I feel like since I don't fall within the 5 categories of times serviced, (exe. Gulf War, POw etc). I might have been mislead by my VSO. Like I understand the Epilepsy is Chronic Presumptive but my service dates don't fit... 

[Berta]

I think you mean the dates with 38 CFR 3.307 that preceeds 38 CFR 3.309:

(1) Service. The veteran must have served 90 days or more during a war period or after December 31, 1946. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(c) and (e). Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(f), as long as the period of service also satisfies the requirements to establish a presumption of exposure to contaminants in the water supply at Camp Lejeune under paragraph (a)(7)(iii) of this section.

https://www.law.cornell.edu/cfr/text/38/3.307

As I understand 3.307:

"The veteran must have served 90 days or more during a war period"-it does not say 'in a theatre of war'

Regardless of where you served , the Gulf War is not over:

 

"Deadline for Gulf War Veterans With Presumptive Conditions is Extended to 2021. The VA has extended the deadline to receive disability benefits for Persian Gulf War Veterans with certain presumptive conditions. The deadline was previously set to expire on December 31, 2016, but has been extended to December 31, 2021."

 

Gulf War Presumptive Conditions: Deadline Extended to 2021 ..

.https://cck-law.com/blog/deadline-for-gulf-war-veterans-with-presumptive-conditions-is-extended-to-2021/

The war in Afghanistan might come to an end and then maybe the GW period will not longer be extended. It has been extended by now for many many years.

I hope others here chime in on this------maybe they have a different take on this period of war-

[Berta]

I just found this statement in 3 recent BVA decisions"

"In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including nephritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

I know you served "after December 31, 1946".

I assume you served for more than 90 Days.

Others will chime in....

those recent decision add :

 

"In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including nephritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309."

It often takes a Strong IMO/IME to prove the 10 percent , as an IMO/IME doctor willi read over carefully your complete SMRS, 201 files, etc, and determine possibly with medical treatises , as well, that even if the 10% is not supported by the documented service medical evidence--- some disabilities obviously manifest themselves at 10% in other ways medically, yet might not be diagnosed before they actually manifest themselves.

Edited February 24, 2020 by Berta

[ShrekTheTank]

As Berta has stated above, you stated you have been in treatment since 2019, so you already fall in the presumptive list of serving during war time.  

So it looks like you do fit into both the within 1 year of service, which should automatically service connect this condition.  Second I believe Berta is correct you did not need to have served in a theater of war.  

Now here is where the VA give me what I normally ask for as I always put combat veteran (OIF/OEF) this has always worked for me and they have never given me flack like this.  I am assuming they are going off of well you did not go over there so this did no occur in service.

May I ask what you put down for when you went to get service connected for this condition?  Did you say it should be a presumptive?  I am only assuming here as they just went well you did not go to the gulf war so you do not fall under the presumptive list.  You may have put yourself in a corner by not painting with a wide brush.  I have done this before and it took going to the BVA to correct the verbiage and to get it service connected they way they thought it should be.

Can you post the denial?  minus and personal information?  

The biggest thing here is to not give up.  Keep fighting this and keep pushing as you will win this fight!  

 

[Glenndawson100]

1 hour ago, shrekthetank1 said:

As Berta has stated above, you stated you have been in treatment since 2019, so you already fall in the presumptive list of serving during war time.  

So it looks like you do fit into both the within 1 year of service, which should automatically service connect this condition.  Second I believe Berta is correct you did not need to have served in a theater of war.  

Now here is where the VA give me what I normally ask for as I always put combat veteran (OIF/OEF) this has always worked for me and they have never given me flack like this.  I am assuming they are going off of well you did not go over there so this did no occur in service.

May I ask what you put down for when you went to get service connected for this condition?  Did you say it should be a presumptive?  I am only assuming here as they just went well you did not go to the gulf war so you do not fall under the presumptive list.  You may have put yourself in a corner by not painting with a wide brush.  I have done this before and it took going to the BVA to correct the verbiage and to get it service connected they way they thought it should be.

Can you post the denial?  minus and personal information?  

The biggest thing here is to not give up.  Keep fighting this and keep pushing as you will win this fight!  

 

Hi,

I pushed for presumption, but my civilian doctor said (in medical notes sent to the VA) that " Military medical records show an episode of syncope taking place in AUG of 2015. I am more then likely suspicious that this might have been the patient's first seizure as on boarding paramedics describe a state of unawareness". 

 

Also ill bring up I was deployed several times in the 4 year period. So I keep hearing I shouldn't be as worried the Ebenefits not updating right away with a new rating, its just hard not to because for my two other rating its was updated on the same day. Im currently rated at 40%. Is it true that Ebenefits might not updated accordingly do the possible new rating being high enough to warrant a retro in excess of 20K?

[ShrekTheTank]

I am assuming you were in the military at this point?  Where did you deploy?  What are your service dates?

 

Ebenefits can be tricky as sometimes it does it right and then they could be holding onto things to see how they play out or just to make you wait.  Retro will not show up on there, but it will show up in the payments.  You really need that envelope to show what the actual decision is and then we can help you fight the VA.  

also you were still within your year as of feb 1st of this year so it should fall under time in service.  You will probably need to keep fighting this and take it further.  You will probably be looking at a much larger back pay at the time they finally get this right.