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Lemuel

What is the effective date for seizures?

Question

A veteran cannot be SC for seizures until the are observed, or confirmed.  I have not been able to find an instruction on the effective date after confirmation.  Mine were claimed as "residuals" of my TBI in 1974.  They were confirmed in September of 1990.  The award for the residuals was 0%.

Does anyone know the regulation, code or instruction that defined dating of confirmed seizures?

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OK, you and or your representative will have to do your own research and homework. I believe that your answer can be found in 38 CFR part 3 and your medical records.  Look under 38 CFR 3.156, 3.157 and 3.400.  You will have to prove/show that your disability reached a certain disability rating percentage at a earlier date in time.

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

 
38 CFR 3.157 is a historical regulation that provided that evidence of examination or hospitalization may be accepted as an informal claim for increase or to reopen.
  • This regulation was eliminated on March 24, 2015, in association with the Standards Claims and Appeals Forms Rule.
  • However, 38 CFR 3.157 applies, with multiple revisions dating back to 1933, until its 2015 elimination.  Thus, VA or uniformed service health care facility records dating within that time period continue to be potential informal claims for increase or to reopen without regard to when those records are incorporated into a claims folder.  The correct assignment of effective dates is contingent on properly recognizing these informal claims
3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

(Authority: 38 U.S.C. 5110(a))

(a) Unless specifically provided. On basis of facts found.

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2 hours ago, pacmanx1 said:

OK, you and or your representative will have to do your own research and homework. I believe that your answer can be found in 38 CFR part 3 and your medical records.  Look under 38 CFR 3.156, 3.157 and 3.400.  You will have to prove/show that your disability reached a certain disability rating percentage at a earlier date in time.

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

 
38 CFR 3.157 is a historical regulation that provided that evidence of examination or hospitalization may be accepted as an informal claim for increase or to reopen.
  • This regulation was eliminated on March 24, 2015, in association with the Standards Claims and Appeals Forms Rule.
  • However, 38 CFR 3.157 applies, with multiple revisions dating back to 1933, until its 2015 elimination.  Thus, VA or uniformed service health care facility records dating within that time period continue to be potential informal claims for increase or to reopen without regard to when those records are incorporated into a claims folder.  The correct assignment of effective dates is contingent on properly recognizing these informal claims
3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

(Authority: 38 U.S.C. 5110(a))

(a) Unless specifically provided. On basis of facts found.

Way ahead of you on that, pacmanx.  That is the point of the question.  While 38 CFR 4.121 has changed a little.  Now it says a physician must witness or "verify" instead of confirm.  Don't understand the need for the word change.  One would think that because of the probable delay in witnessing or verifying that there would be instructions specific to effective dates for seizures.  Not found in my search or yours.  Post ictal EEGs were used to confirm mine and start treatment.  The 1990 treatment failed because the physician used a drug contraindicated on two counts for the specific seizure he diagnosed and my sensitivity to amitriptyline.  So I also have a 3.154 claim in the process stalled because I am COVID symptomatic but not symptomatic enough to get tested.  No face to face C&P exams available.

I wasn't appropriately treated until 2015, which made a whale of a difference.  I am more employable now than I was at 33.

My SSA CAVES report (part of the RBA) documents the absence seizures in the mid 1980s.  Complex partial seizure symptoms were first documented in my 1969 September 23 to October 20 hospitalization nursing notes.  So evidence should be sufficient.

I have 26 year old unadjudicated Substantive Appeal that has a confirmation and treatment of complex partial seizures (a temporal lobe epilepsy (TLE) presentation) that is finally finding its way through the CUE loops after the Director of Denver VARO denied its existence in 1998 to the VA OIG.  But somehow it appeared in the RBA on my TBI review for TDIU back to 2009. 

I appealed the TBI rating to the CAVC and then because the Seizure Clinic and Back clinic records were missing, I challenged the completeness of the RBA at the BVA and again at the CAVC.  It was missed by the BVA judge who caught my 33 year old extra-schedular TDIU claim which found its way to be approved on 07/06/2020 with backpay to 09/16/1985 my last day of full time employment.  Somehow it caught my eye in challenging the CAVC decision that didn't mention the incomplete record and its challenge at the BVA when appealing to the CAFC.  Now waiting that decision.

If I find a decision or get one on the effective date I'll post it.  I'm sure with all of the TBI victims and cerebral malaria victims there are others that need it.  One thing I would point out to anyone who has been hospitalized by the military for either of those problems is that the military minimized the hospital summaries.  You need to get the inpatient records from ST Louis if they are the old hard copy before digitalization.  I think, but don't know, that the digital records are carried over to the VA now.

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"Your doctor" provides VA "part 2" of the effective date (facts found). Part 1 is the "date of claim" and part 2, is the "facts found" or the date the condition arouse.  

Social security calls it the "onset date"..va calls it the effective date.  

It sounds like you established and agree (with VA) on "date of claim". (1974).  But you dispute their "facts found" (the date the doc said you were disabled).  

In order to refute medical findings of fact (such as when your disability began, or was confirmed), you refute the c and p exam with an IMO, where a doctor reviews your evidence and determines your disability first began (was confirmed..by history) on xx date. 

In short, you likely need an IMO to win an eed if the facts found are in dispute.  

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5 hours ago, broncovet said:

"Your doctor" provides VA "part 2" of the effective date (facts found). Part 1 is the "date of claim" and part 2, is the "facts found" or the date the condition arouse.  

Social security calls it the "onset date"..va calls it the effective date.  

It sounds like you established and agree (with VA) on "date of claim". (1974).  But you dispute their "facts found" (the date the doc said you were disabled).  

In order to refute medical findings of fact (such as when your disability began, or was confirmed), you refute the c and p exam with an IMO, where a doctor reviews your evidence and determines your disability first began (was confirmed..by history) on xx date. 

In short, you likely need an IMO to win an eed if the facts found are in dispute.  

Thanks, Bronco.  I think I'm there.  The onset date was in the hospital and then the next two sets of quarterly marks also documented.  Not perfectly but should be good enough.  Got better for about three years before turning the other way.  Plenty of evidence including the "confirmation" in 1990.

My appeal in 1992 of my 1989 claim may help a lot of vets get earlier effective dates for their TBI in my next of friend claim for them.  I'm attaching a redacted version.  Take a look and see what you think.  I wasn't altogether when I wrote it following the mistreatment with Tegretol so it isn't well organized.  But, considering the condition I was in before getting treated in 2015 with Keppra, I think it will fly.

There is also the VARO Denver letter to VA OIG that denies its existence until it showed up in the RBA while I was appealing my current BVA decision on up to the CAFC.  Noted it in my brief, acknowledged it hadn't been brought up at the CAVC and ask the CAFC to do what it thought was right.  Appel Brief also attached without the full Appx.

19941126 Lem to BVA sub appeal copy Cheye_Redacted.pdf 19980720 VARO Den response to OIG_Redacted.pdf 20200730 Lem Brief modified.pdf 20200730 Lem Motion modified.pdf

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Posted (edited)

It looks like you are "at the CAVC" in the appeal period.  Did you know you can hire an attorney for free at the CAVC? (EAJA pays the fees if you win)  How do I know?  I have been to the CAVC 4 times, once Pro Se, and the 3 others represented by an attorney.  All my lawyers were paid by EAJA.  My attorneys:  1.  NVLSP, 2. Julie Glover at Glover Luck, 3.  Chris Attig with Attig Steele. I won a remand at each visit to CAVC, and eventually won additional benefits upon remand.  

    These are all professional, experienced law firms, and they dont take cases, pretty much, unless they know they can win.  They make a living at this, and dont want to work for free.  So, you can send your paperwork to an attorney (recommended).  

 

Its a little hard to read for me, probably because I dont have your Cfile available.  When I appeal, I do it in the following format:

1.  The VARO decision dated mm-dd-yy stated, "there is no evidence supporting an earlier effective date".  (Now, I refute that statment).  Contrary to the RO decision,  in Jan. 1990, I was admitted to the VA hospital for these conditions.  (cite evidence of hospital admission such as records).  

     You want to "parse out" the 2 effective date issues: "Date of claim" and "facts found".  You still may need an IMO from a doctor to "review your records" and state what I stated, above, pretty much.  You dont need an IMO if your "date of claim"  is not in dispute for that part...just the "facts found".  

      Hint:  Read over the rules for effective dates and see if any of the other exceptions apply to you.    https://www.law.cornell.edu/uscode/text/38/5110

      A few examples are:

1.  If this was a claim for increase.  

2.  If you applied within a year of exit from service. 

3.  If you filed an ITF.

4.  If laws changed.  You should get the more favorable of the old laws or new laws.  

Edited by broncovet

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