Filed for increase, got letter from DAV that VA plans to reduce

[dsteele713]

I haven't gotten the actual VA letter yet, and the claim is sitting at "pending decision approval" right now, but obviously I need to start preparing immediately. Here are the details:

I was diagnosed with Reactive Arthritis in service. Left knee and toes swelled up, had to use crutches because of foot pain and severely limited range of motion, etc, etc. Started taking Humira and symptoms went away. Upon separation I was granted a 60% rating for the arthritis, as well as a 20% (splenectomy), and 3 10% ratings (Jaw scar, residuals of fractured mandible, tinnitus). Combined rating was 80%.

After separating I continued with my active duty humira prescription, because I separated with 6 months of healthcare. About 3-5 months after my Humira supply ran out, I had another arthritis attack, except this time it was for eye inflammation (iritis or uveitis) that lead to severe photophobia. I woke up and my eyes were already in pain, if I looked at any sources of light (room had blackout curtains) I would experience shooting pain and had to close my eyes immediately. It was also a lot more sudden than the first attack. I went to bed with my eyes being irritated but not in pain, woke up to terrible pain. In contrast, it took several weeks for the arthritis to progress to its peak, so I assumed I would have time to go to the VA if symptoms started developing again, which is why I didn't get an appointment with the VA for a new Humira prescription. In addition, reactive arthritis can be a one-time thing, and it hadn't been long enough that you could say whether it was one-time or chronic.

At any rate, it took some intensive care and weeks for the symptoms to mostly subside, though it took a few months to fully subside. This attack was more incapacitating than the first one. While the first one prevented most physical activity my job was a desk job and I was still able to work. By contrast, with the photophobia I couldn't operate a computer for weeks. I was mostly stuck at home doing nothing. Based on how my condition was rated (should be 5009, rated as analogous to 5002, rheumatoid arthritis). I felt I could make the case that it qualified for the 100% criteria: "With constitutional manifestations associated with active joint involvement, totally incapacitating". So I applied for an increase on that.

The other relevant increase I applied for was for the 10% rating on my jaw scar. While it hadn't gotten worse, I realized I should qualify for two of the criteria for characteristics of disfigurement "wider than 1/4 inch", and "adhered to the underlying tissue". So I applied for an increase, expecting a 30% rating.

I also applied for a new rating because I take immunosupressants "constantly or near constantly" to treat my arthritis. After filing I realized I may or may not get this since it might be considered pyramiding, though I'm not sure. The rating is for how it suppresses your immune system, but I'm still learning so I don't know whether this would be pyramiding or not. Would this be in your opinion?

At any rate, I received a letter from the DAV saying that the VA actually plan to decrease my ratings. They're proposing a decrease to 10% for the arthritis, and a decrease to 0% for the jaw scar. I have yet to receive the VA letter, and the current status on eBenefits is "pending decision approval", though around the time the letter is dated it was at "preparation for notification". I'm assuming that's when the DAV got notice what their plans were. The letter doesn't say anything about the request for the immunosuppressants I'm taking. I'm not sure if they hadn't made a decision yet or if they had and that letter was only notifying me of possible decreases. I'm planning to call the DAV for more details on Monday.

The decreases are really confusing me. I could see being denied an increase on the arthritis rating since I was only "totally incapacitated" for maybe a week or so, but a decrease makes no sense, especially a 10% rating. For 10% they would have to be rating it for chronic residuals and not as an active process. The minimum for an active process is 20%. What could be their justification for a decrease, especially that severe? At the moment I'm not experiencing any symptoms, but 1) Reactive arthritis is periodic and the severity over time varies greatly -AND- 2) I'm currently taking Humira, so any reaction is being suppressed.

As for the jaw scar I'm very confused how they could justify a decrease. It hasn't changed and was rated at 10% already. So what are they thinking here?

I do have some ideas for what they're thinking:

- They requested DBQs for Lupus and other auto-immune disorders, and looking at my original award letter it looks like my rating is based on the criteria for lupus, though the claim is for reactive arthritis and this would fall under DC 5009, Arthritis, other. Under the different criteria for lupus it probably wouldn't qualify for 100% because ratings are based more on frequency. In fact, lupus has a 10% rating for " Exacerbations once or twice a year or symptomatic during thepast 2 years".This might explain the 10% proposal, but if so they're using the wrong criteria. And also, why did I get a 60% rating in the first place when my initial rating was for one (very drawn out) exacerbation?

- For the scar, I'm really confused. I don't remember the examiner even checking to see whether my scar was adhered to the underlying tissue. The exam was mostly centered around the arthritis discussion. 0% would have to mean she measured it at less than 1/4 inch and that it was marked as not adhered. But I don't believe she checked for adherence, and I already had another evaluation that confirmed wider than 1/4 inch. And she definitely didn't measure my scar across it's length so you couldn't say less than 1/4 at the widest.

Note that neither of these ratings are protected ratings, so I understand it requires less for a decrease. Still, what the hell are they thinking, and what should I do in preparation for a response? Here's what I'm thinking so far:

- Schedule an appointment with rheumatology to fill out the correct DBQ. Under the correct criteria it should be 60% at a minimum, and hopefully she decides it qualifies for 100%. Since it would be an exam done by a rheumatologist under the *correct* DBQ, compared to the exam by the C&P doctor using the wrong one, this should outweigh/overrule the 10% rating from what they have already.

- Have the scar re-measured, maybe by my primary care provider. Two exams showing wider than 1/4 inch should sufice.

 

What are your thoughts?

What else should I do to get ready?

Would I have a basis for a CUE since it appears I was evaluated under lupus instead of under DC 6350 for Lupus instead of under DC 5009 for Arthritis?

Would the recent Shinseki court case regarding how the VA cannot consider the effects of medication unless those effects are explicitly considered in the DC be relevant in this case? The effects of medicine aren't considered under 5002, though the fact that I'm fine at the moment might be their basis for the 10% rating.

Edited February 19, 2017 by dsteele713
Forgot to ask about CUE

[broncovet]

First, you will have to wait for the letter from VA, but it does give you some time.  

You said your rating was "not protected", but lots of people dont even know what that is.  Did you, for example, know your rating has "protections" after 5 years, and you dont have to wait the 10 or even 20 years.  (Tho the 10 and 20 year protections are even better.)  

On another site, I got into an arguement with a guy who inisisted there was not such thing as a "5 year" rating protection.  

For you I will copy the regulation that explains the 5 year protection:

(Notice the "protections" in 3.344 a and b apply if you have been rated over 5 years; see (3.344 C, below:  in bold) .

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of VeteransAffairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

Edited February 20, 2017 by broncovet

[dsteele713]

The 5-year requirement was specifically what I was thinking of when I said it wasn't protected. Both ratings are about 2.5 years old, so there isn't any kind of protection that I'm aware of.

On the other hand, I don't see how you could make the case that my condition has improved.