Yuku free message boards

Rotor Head wrote:

---

The evidentiary standard is a preponderance of the evidence  

No, it actually isn't that high.  A preponderance of the evidence means that at least 51 percent must support the contention.  This is the standard that VA once used in defining "reasonable doubt" however, this was later changed by the Court as being met when the evidence was simply in equipoise, meaning that only 50 percent is required to meet the reasonable doubt standard.

Cruiser

alphathreat wrote:

---

No documentation, to my knowledge, exists of my being knocked unconscious during the event. At the time other people were dying and more severely injured than me.  

The problem here is that you WERE treated for the fractured scapula and this was documented in your record; however, a head injury with loss of consciousness and memory loss would have actually been considered to have been a much more serious situation than the scapula injury by any halfway competent medical person.  Just about every organization, including the U.S. military has standardized protocols to follow in the event of a head injury, especially when there has been any loss of consciousness.

The U.S. military protocols were developed in conjunction with the Brain Trauma Foundation a number of years ago.  Even when I was a Navy Corpsman back in the late 60's-early 70's we had specific procedures to follow whenever there was a loss of consciousness, even for only a few seconds.  Modern day documentation, even in a combat zone, is much better than it was back then.

Don't get me wrong, I'm not trying to discount what you say.  I'm simply trying to show you the difficulties that you will face in convincing others that  your assertions are plausible, and this is what you are doing if there is zero documentation.  I'm assuming that is why you are seeking advice here.

Look at it this way, a head injury of the severity that you are describing is unlikely to have been ignored while a fractured scapula was documented, and it is unlikely that such an injury would have gone unnoticed by any medical personnel, including a medic or a corpsman, and left off of a report including a field tag for an injury.

On the other hand a single head injury that was mild enough to have not been noticed by anyone treating you for the fractured scapula is unlikely to have any significant long term or delayed effects, like epilepsy.

This will likely put you in that area we see so often here where a doctor's opinion is rejected because there is no documentation to support the history upon which the opinion was based.  Are you seeing the paradox that this is presenting?  A single head injury severe enough to cause seizure disorder would have been extrremely unlikely to have gone unnoticed and reported, while the type of single head injury that could have gone unnoticed would be extremely unlikely to cause a seizure disorder.

A much more plausible scenario would be a series of small, relatively minor head traumas that caused a delayed effect based on the cumulative effects of the repeated minor injuries.  This type situation is common among boxers and football players where there is no single injury but a series of repeated blows.  The problem is that you are claiming to have suffered a single severe injury with unconsciousness and loss of memory.

My hunch is that it will be extremely difficult for you to prove this claim.  Not impossible, but extremely difficult. 

Cruiser

alphathreat wrote:

---

Cruiser,  thanks for the info but I respectfully disagree. 

Actually I don't know exactly what it is that you are disagreeing with is straight from either the TBI training that I had or my own research into TBI with research from places like Johns Hopkins or the National Institute of Health.

The fact is that about 10 percent of all serious brain injuries result in a seizure disorder.  The majority of brain injuries in this 10 percent category that cause seizure disorders are injuries in which there was a depressed skull fracture or a penetrating head wound.  Also in almost all cases the first seizure occurred within a week to ten days after the injury.

When a neurologist is asked to provide an opinion as to the liklihood of your seizure disorder being due to a head injury in service, the above statistics are similar to what he will have rolling around in his head as he formulates the opinion. 

I don't think that you are understanding what I'm saying about your chances of getting the claim approved by VA.  Of course a TBI can cause seizures.  Nobody is disputing that.  What I'm saying is that the probability of a seizure disorder resulting from a TBI is directly tied to the severity of the initial injury and the type of injury that generally causes a seizure disorder is not generally the type of injury that would go unnoticed and unreported, while the type of head injury that isn't likely to cause delayed sequalae is exactly the type that could go unnoticed and unreported.  This is the paradox that you must get around with VA.

To sum it up in simple terms, the odds of someone suffering a traumatic brain injury that is severe enough to cause epilepsy that wasn't noticed or reported while treating a concurrent fractured scapula is so slim that it will be difficult for a doctor to say that it is as least as likely as not that the undocumented head injury was severe enough to cause a seizure disorder.  That's all I'm saying.  It won't be impossible to prevail, but very difficult. 

Speaking as someone who made these type decisions for many years, including many brain injuries, I would even go so far as to say that it would probably have been better if you had not suffered the scapula injury because this is documentation that you were actually seen by medical personnel following the injury and since it is unlikely that they would have completely missed a head injury as severe as you describe, this actually lessens the credibility.

It will be a very difficult claim to prove based on what you have said so far.

Cruiser