Schedule of ratings for neurological conditions and convulsive disorders

Used to Be Army Strong

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this I do not understand. In November 2007 I was diagnosed with narcolepsy I have had the MSLT and it came back that the Mean SLT was very short with 2.8 min. per nap and I felt very tired in between and dozed off a couple times. now that i have began medication treatment i still have problems with staying awake. On average by day I fall asleep "unconscious" and have at least 2-3 of what i call blackouts i just daze out and lose focus and have no audiable memory of the situation. the times i fall asleep these naps tend to last from 30 mins to a 1 hour and 30 mins and my wife says i am not easily waken. the "blackouts" are no longer than 15-20 mins. but atleast 5 mins most time. so i guess my question is with these symptoms how does this apply to the fact that the VSARD says to rate narcolepsy as epilepsy. i dont get it because i dont have epilepsy and i dont have seziures so how can they use the same scale and how can I confirm the consistantsy with others with narcolepsy? please help if you have any information.:confused:
 

Jason Perry

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Used to be Army Strong,

The confusion comes from the fact that the VASRD is not a medical document, per se. It is an administrative document used to rate functional impairment. It does not cover every single condition known to man and in some instances, it sends you to rate one condition with the criteria for another. That is the case with narcolepsy. They tell you to rate as petit mal seizures which are defined as "Note (2): A minor seizure consists of a brief interruption in consciousness....." From what you described, it sounds like you should be rated at either 60% or 80% (actually, I base this on what they likely will rate you at if this is documented...but a proper application of the law says you should get the higher of two evaluations if there is reasonable doubt. That means a proper rating should be 80%).

Hope this helps, and let us know other questions.
 

Used to Be Army Strong

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thats great information does this apply to the VA or the Army PEB. I have heard in the end I am going to need some astro glide for the PEB but VA will give me a resting place in the end.?:confused:
 

Jason Perry

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It applies to both. With the VA, in the long run, they tend to do better with following their own rules than PEBs. This is, in my opinion, because they have a special federal court, the US Court of Appeals for Veteran's Claims that holds their feet to the fire (I am admitted to practice law there, and it seems like they do a good job, overall). There are courts with jurisdiction over PEB cases, but most Servicemembers don't bother. So alot goes unchallenged.

The caveat is that it can typically take several years to work through the VA system. That is why I think it is important to get the right result from PEB, to cover you in the meantime.
 

Used to Be Army Strong

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when finding a lawyer to help with my PEB what are the odds of finding one that will somehow guarantee an outcome or discounted fees for not meeting that guarantee?
 

Jason Perry

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That would be unlikely. I would be concerned if they did do that because of ethical concerns.

Just so everyone is clear on this, I have a financial interest in this answer, as I practice in this area of the law.

Let's take a look at each issue separately.

when finding a lawyer to help with my PEB what are the odds of finding one that will somehow guarantee an outcome
If an attorney does this, it is pretty clearly unethical and prohibited by Rules of Professional Conduct. This is because it is misleading (you can't know how the PEB will rule and thus cannot make guarantees) and it violates ABA Rules for Professional Conduct "Rule 7.1 Communications Concerning A Lawyer's Services-A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading."

or discounted fees for not meeting that guarantee?
For the reasons mentioned above, the guarantee part is out. But you could find a lawyer who may take a contingency fee. Something like, "I will charge you $5000 if you get 30% or more, but only $2000 if you don't."

While technically permitted, it is still problematic, in my opinion. Here is why. When setting a fee, a lawyer takes into account the value of his work and the overhead of running the business. He then comes to what he thinks is a reasonable figure for his services, also taking into account the work involved, his expertise, and what his competitors charge. That figure is x. Now, if he takes a contingency fee, he must be either optimistic about the outcome and is willing to price in the risk as y (the amount he is willing to discount if you don't get the result you contracted for), or he is pricing in an increase in his fee, z (the amount above x he is going to charge in order to make sure he gets to x, no matter what happens). So, if he loses and only gets x-y, he is getting less than he needs to stay in business. Not a good deal for him and unless he is very confident, not a deal he will likely make. If he charges x+z, but loses, and only gets x, (what he would have charged in the first place) he has gotten more business than he would have otherwise, made his standard fee and has no incentive to work any harder than under the normal agreement (which I believe is what you would be hoping to get by having the contingency arrangement). But if he wins and gets x + z, now he is doing great, and he probably did the same work he would have done anyway. But you just got charged a premium for the willingness to take the contingency fee and probably just paid an unreasonable fee. Two of the outcomes in this arrangement are good for the lawyer while only one is good for you (and the attorney won't take it unless he is sure in the first place).

What I always suggest is that you speak with several attorneys and choose who you feel most comfortable with based on their experience in this area of the law, services offered, and fee. However, I would have serious concerns about anyone who offered a guarantee or took a contingency fee in these matters. Contingency fees tend to lend themselves more to getting a percentage of a recovery, and are probably most appropriate where the hourly attorneys fees would otherwise be very large, and the potential recovery is substantial.
 

Jason Perry

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I also think that if the attorney believes he will surely "win" (which I presume means a rating of 30% or more, the analysis may change if "win" means some other specific result, like a specific higher rating than 30%), the Servicemember would probably do fine with the JAG or assigned military counsel.
 

Used to Be Army Strong

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I also got my second opinion back in letter form from the Psych, at my meeting with the PEBLO and in it, it states that i have a defenite impairment on social and industrial status and it was LOD YES EPTS NO ABS N/A and later on do the page it states that i have improved with the meds. and i only fall asleep uncontroled once aday now compared to 3-5 times but i still daze out several times. Now how should this be rated? I have seen the VASRD but not sure on how to interrupt it. and i have also seen this.
General Rating Formula for Psychoneurotic Disorders
SO......
 

Jason Perry

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That link is killing me! That was the VASRD as it existed prior to 1996! (The Federal Register lists the change as Oct. 8, 1996 61 FR 52695). It is not the law anymore and hasn't been for 11 years.

You are asking about the narcolepsy rating, correct? That will be rated under code 8108.
 

Used to Be Army Strong

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yeah im asking about the narcolepsy rating.
the VASRD says under code 8108 to rate as epilepsy petit mal.
when i look up that under code 8911 it has a whole bunch of mumbo jumbo and doesn't match anything that my doctor put as a diagnosis unlike that link it matched perfectly.
 

Jason Perry

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General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year 100

Averaging at least 1 major seizure in 3 months over the last year;
or more than 10 minor seizures weekly 80

Averaging at least 1 major seizure in 4 months over the last year;
or 9-10 minor seizures per week 60

At least 1 major seizure in the last 6 months or 2 in the last year;
or averaging at least 5 to 8 minor seizures weekly 40

At least 1 major seizure in the last 2 years; or at least 2 minor seizures
in the last 6 months 20

A confirmed diagnosis of epilepsy with a history of seizures 10

You want to document the number of narcoleptic attacks you have. May be a good idea to keep a diary, see if doctor will document the number of attacks in a treatment note.
 

Used to Be Army Strong

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well in the addendum he wrote up he stated that i fall asleep at least on time a day w/o control and daze out very often with out memory of what has happened. he also noted that i am not able to operate a vehical because of lack of control even with medication.

on the other hand the sleep specialist did a MSLT and it came back that i fell asleep 5 times and reached REM 2/5 with a sleep latency of 2.8min. but all this is with out medication. but all is documented i just dont know where that should put me on that scale?
 

Jason Perry

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They rate on how it is controlled with treatment. So, to me that looks like the 5-8 times a week criteria is met = 40%.
 

Used to Be Army Strong

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okay so it is considered minor siezures when i fall asleep uncontrolably? I mean i rear ended someone last fall while i was on meds because Think i fell asleep i don't know what happened i have no memory of it.
 

Jason Perry

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Yes, that is how they should rate the "falling asleep" as a petit mal seizure.
 

Used to Be Army Strong

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i guess i am confussed and need clarification SP? the definiton it gives for major seizures it loss of conciousness which is what is happing when i fall asleep for a hour or so. right? to me when i daze in and out and have no memory of what is happening is what i would compare to minor seizures. this is how id consider it is this not their ideaology?
 

airassault

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okay so it is considered minor siezures when i fall asleep uncontrolably? I mean i rear ended someone last fall while i was on meds because Think i fell asleep i don't know what happened i have no memory of it.
i am aware this site might try and help people, but why are you driving and on meds that make you fall asleep? next time you might hit a child or someones loved one, I'm just a bit concerned here and think about the big picture first, by taking your license away, due to meds, it would also save your life first.
 

Used to Be Army Strong

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okay they took my license away already becuase i have narcolepsy not because i am on meds that make me fall asleep. however i have been on heavy narcotics for almost 2 years now and they just recently did this. I agree with you they should have done it sooner. they didn't though and i wasn't about to offer it up at the time because i live off post by myself so now everytime i have an appt. its a pain in the butt to have my squad leader come get me.
 

Jason Perry

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I updated the attachment with the new criteria for TBI and residuals.
 
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