ptsd Protected Ratings and Increases/reductions

[USMC_VET]

So I have not put much thought into the protected ratings until the last few months, mostly because i hit my 4 year mark for my PTSD 50% rating this fall and will hit the 5 year next September.

I have done research into it, google searches and searched the forum.  The forum search didnt really pull up much i think due to the change in format and http:// listing for the posts and how the internal search engine finds them.  I know that is going to be fixed soon.

This is one part question from me and one part info for other vets out there...

What made me want to talk about this is the mention ASKNOD had in his blog post today regarding 5 year ratings (https://asknod.wordpress.com/2015/11/04/hadit-coms-radio-show-smc-knowledge/) in that the VA will reduce folks only to grant it again and restart the clock.

What i know is this

5 years- you can be reduced however they have to show SUSTAINED IMPROVEMENT with your disability, it cannot be based on say on C&P exam or say if you say in a VA PCP exam and they ask how are you feeling today? depressed? and you say no i have been doing better this week so far, they cant reduce you based on that there needs to be evidence of improvement over time.  ie, there needs to be more than one mention from a doc or yourself that you are "better".  All of the medical evidence at hand has to show this improvement over time. 

SNIPPET- You can be reduced, you can have SC severed.

 

10 years - You can be reduced but your SC rating cannot be severed unless FRAUD was present.  This applies to any rating for any period of time though.  So the only way you can lose your SC is if you lied to get the SC, you faked your service or you faked your discharge status. 

SNIPPET- You can be reduced, however you cannot be reduced below 0%

 

20 years- You cannot be reduced below the lowest rating you had for a specific SC after 20 years.  So if you were initially awarded 30% and then 2 years later you were increased to 50% after 20 years of the original effective date you cannot be reduced below 30%.

SNIPPET- You cannot be reduced below the lowest rating.  SC cannot be taken away.

 

My question is more detailed regarding how increases work.  granted i have a long way to go to get to 20!

 

Scenario 1:

Veteran is granted 50% for PTSD in 2000

Veteran applies for increase and is granted increase to 70% in 2005

In 2020 the Veteran meets the 20 year mark and his 50% rating is protected (absent fraud).  Does this also mean that in 2025 that his 70% rating is protected? Or is protected only once per SC and at the first (nominally lowest) rating? 

 

 

Scenario 2:

Veteran is granted 50% for PTSD in 2000

Veteran applies for increase but is reduced to 30% in 2005.

In 2006 he applies for increase and is granted 70%.

Does this mean.....

1) in 2020 your rating is protected at 30%

2) In 2020 its protected at 50%

3) In 2025 its protected at 30%

 

I was going to venture to guess based on the statemented that the VA does reductions and then grants increase back to original rating so they can restart the clock on the 5 year that this also applies to 20 year, but i was unsure.  I havent been able to listen to the podcast due to technical limitations with the net the last few weeks.

 

I also wanted to touch on what ASKNOD had mentioned in the blog post regarding the VA policy of reduction, then granting increase to restart the clock.

When i had my proposal to reduce in January and i fought it and eventually won 6 months later, no reduction, continuation of benefits at current level the VSO commented that i would be scheduled for another C&P soon.  I am going to guess, even though they just did it a year before they want another C&P to get another crack at reducing me.  I am going to get another IME here soon as protection and probably file for an increase to pre-empt them.

However for those vets out there that are going to be hitting their re-examination periods, do not take this lightly and do not treat it like some "going through the motions" exam.  it is not, this is as much a fight as your initial claim was.  I know not everyone has the money/ability to do so, but if you can go out and get an exam done by a private physician and/or IME for your condition prior to the re-examination period I would highly recommend that.  Just like an initial claim you want as much evidence in your favor as you can get.  I am lucky in that i still am able to work (for the moment) and have decent insurance.  So for a low fee i keep going out once every 3 months and get "check ups" done for my SC issues with a private physician so that i can keep my medical records up to date and allow for there to be a body of evidence.

When the VA schedules you for an exam go through your C file and prior C&P exam and see what was noted for your condition.  Remember what they stated and how it relates to the rating for the DC you were rated under in the 38 CFR and make sure you make some notes to take with you so that you touch on all the big and little points that got you that rating in the first place.  I hate having to say this again and again, but this is not a lie to get by thing.  If you have gotten better, truly, then be happy.  I know most vets out there would rather be truly at a 0% level for PTSD than living with the symptoms of 50% and would trade that any day of the week.  However if the areas that are ratable symptoms as noted in your original C&P are the same or worse than MAKE SURE YOU LET THEM KNOW.  Treat this like a claim, write up a sworn declaration that states how your condition has stayed the same, gotten worse in areas, etc. 

I am unsure of this part and whether or not you can do this or it will help or not.  I am planning on putting together all my evidence just like a claim and mailing it to claims intake center with the cover sheet with my evidence list stating that "this is to be considered in regards to my re-examination for ______".  I dont see why this would not be allowed, or looked at since the re-examination is just like a claim in that the C&P re exam is going to be sent to a rater who will try their damndest to make a case for reduction. 

Please inform me of whether or not you "can" do this or not, or most importantly if the they are legally required to review the evidence you send.

In any event it is vital to continually keep up on your SC's and keep compiling evidence.  Every VA docs visit print out the notes, medication changes, etc from that and insert it into your "__SC NAME___ EVIDENCE FOLDER".  After EVERY SINGLE private phsyician visit i contact their records office 3-7 days later and request all records, relating to my visit.  I also scan  them to keep a digital copy and have folders for all my claims, etc. 

If the VA decides to reduce you, you have the evidence ready to go no need to stress out over trying to scramble around to different hospitals and get their records, etc.  You have 60 days to send in evidence before a decision is made so you have time to line up a IME (i would also have names of IME's for each of your SC's in a list and ready to call if you need to) and get that done before the timetable.  Know also that even if you have all the evidence you want to submit ready to go and mail it out the same day as the reduction proposal is received the VA will not do anything until the 60 days are up.  This is what happened with me.  within two weeks of stressful scrambling I had an IME and everything sent to them.  I had to wait another 8 weeks before i heard anything and then another 2 months before they made their decision. 

ALSO VERY IMPORTANT. If you receive a letter proposing to reduce your rating do the following.

1) REQUEST A DRO HEARING

I know some people have an issue with DRO's, they are useless, etc.  Make your own decision.  I think you have a better chance with a DRO than a VSR, but thats my opinion.

2) REQUEST NEW C&P

They are not required to do this for you, however if you can make the case that the exam was incomplete, that hte examiner ignored evidence presented, misrepresented statements or say that you were extremely uncomfortable in the exam and had a mental episode (you clammed up etc and didnt explain well enough) they might grant a new one.

3) REQUEST CONTINUATION OF CURRENT BENEFITS AT CURRENT LEVEL UNTIL THE HEARING IS FINISHED AND DECISION IS REACHED

This can be tricky.  What this basically means is that if they decided to reduce you from say 50% to 30% (combined) you would not begin to see the loss of those benefits until 60 days after the date on the letter of proposal to reduce.  If you ask for the continuation of benefits until decision is reached through DRO hearing, they will continue to pay at 50%.  If you win no biggie.  If you lose however you have to pay back the difference.

Example:

You are notified Jan 1 2015 that they want to reduce you from 50% to 30% and you request the DRO hearing and conintuation of benefits.  Your hearing is not until September 2015 and the decision is made to reduce you, you will will have to pay back the difference ($428.38 per month) which would end up being from March to September, $2998.66.  Personally what i did when i was under the gun of a proposal to reduce is that i reduced my own budget by that.  I cut us down to bare bones to live on what my reduced rate would be and i stashed it away.  This way if i lost i would not only be harder up but in debt, and if i won it would be a chunk of savings.  I know not everyone can do that, but i would do it if you can.

 

NOTE:  It is also important to note that if/when they schedule you for a re-examination you HAVE TO SHOW UP.  Dont blow it off and think "if they dont re examine me then they dont have a reason to reduce me!"

WRONG!  If you dont show up and you dont make a honest effort to reschedule they can will reduce your benefits or even terminate your SC.  And that will be a 10x harder row to hoe than a proposal to reduce.

 

So in short even if you win your claim or the increase that is not the end, the VA will continue to try and come after you to reduce you, especially before the 5 year mark so dont just coast after you win.  Its just like war, even after you win a major battle you need to continually work on your defenses in case of a counter-attack.  Dont stress out, be happy, but always be ready.

 

 

 

 

 

Edited November 5, 2015 by USMC_VET

[Buck52]

This is just my opinion

If they reduce any veteran then need concrete evidence of improvement  or an opinion from a VA Doc stating he ex aimed you and your disability in his opinion has indeed improved  and as I understand it    this needs to be done twice. with different Doc's  if they have different opinions  then the veteran will not be reduced...other than proving a fraud.

Also any ratings as for as the 5 or 10 or 20 year rules  the va starts the date the veteran gets the increase or award for that particular disability.

in other words it would be hard for the VA to just reduce with nothing to judge by.

[Vync]

It is possible to fight and reverse an incorrect VA rating reduction, but it can be a headache.

One of my ratings was deemed to "improve in the future" and they notified me of their intent to reduce and even had a C&P. I submitted non-VA records showing continued problems. They reduced me anyway. I appealed because they did not list and ignored the evidence I submitted, even though I had return receipt confirmation. C-file examination determined the evidence was received by the RO, but ignored. I won. They expunged the reduction, paid retro, and my EED for the higher % was protected.

[Buck52]

Do you guys think the VA is out to reduced veterans to help lower the US Deficit ?

Congress is already stopping the funds for different US Programs that is hurting a lot of people

planned parent hood is just one to mention.

[green]

My opinion is the political winds are currently favorable towards veterans.  The VA gets caught doing something wrong and it's immediately reported as a scandal on the news.  One would think it would be in there own best interest to "do the right thing".

And yes, at times I am naive.  I choose to remain positive as best I can.

 

Green

[Andyman73]

Buck,

I doubt the VA is trying to help with the National Debt, if anything they are trying to reduce their own overhead so they can pad their bottom line and restore their own bonuses(which are paid for by denying Vets their claims, increases, EEDs and such.).

3 of my SCDs are nearing the 17 year mark, and one is at 15 plus.  While they were reevaluated during exams for other claims, I was fortunate enough to have never been threatened with reduction(Thank you God).

Semper Fi.

Andyman

[Buck52]

I hear that Andyman,

I went through a reduction from a VA unfriendly veteran Doc one time....this doc took home the veterans c-file and study it trying to find any flaws  he went over my c-file with a fine tooth comb paint and powder...but I NOD  for DRO Hearing and had I a Specilist to examine me and I won over the VA Dr   the DRO said the VA Exaimner went to far and delved back into my c-file for unnecessary reasons

he still at my VAMC too and all the veterans don't like him   he looks to be about 70/75 years of age too!

I will never go see him again and my DRO said I had that right. as long as I was willing to go take a C&P If the VA needed me to?..I said sure as long as it not that idiot  he just laugh..

 

.......Buck

Edited November 5, 2015 by Buck52