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Tdiu Retro Question

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beenwaiting8years

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Ok I had been waiting on appeal For over eight years and recently received the initial rating decision. In it it said I was rated at 100% for the first three years and reduced to 70% for the remaining five years. I have been getting ssdi for this condition since 2003, which encompasses all that time of the 70% rating, well I immediately applied for tdiu after receiving that fraying decision. I've read that tdiu can be paid prior to the date of application in certain circumstances. Since the VA rated me at 70% retroactive five years and ssdi was being awarded for that period of time for the same condition, will an earlier date for tdiu be an option? Thanks for any insight.

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This is a new one for me-

"Ok I had been waiting on appeal For over eight years and recently received the initial rating decision. In it it said I was rated at 100% for the first three years and reduced to 70% for the remaining five years. I have been getting ssdi for this condition since 2003, which encompasses all that time of the 70% rating, well I immediately applied for tdiu after receiving that fraying decision."

John is right- we need to see the rating decision to

1. determine if they had the SSA info,when they had it , and how they applied the SSA evidence and

2. what kind of medical rationale they used to feel you were only 70% after granting the 100%

"The reason I was reduced to 70% was a VA doctor assessed me as improved. But if I'm getting ssdi all that time, I seems I would b eligible for tdiu.."

The doctor had to have a complete medical rationale for that determination and you should have been advised of this proposed reduction- yet this is in you recent decision? weird to say the least-

Do you have copy of the C & P that generated this "improved" assessment ?

Also- have they sent you the TDIU form by now?

Then again - you are 100%- and need to prove you always were 100% since filing the claim.

Have they ever mentioned your SSA records at all in the decision?

They never mentioned the SSA records at all in the decision. They have verified in the past that they had them. I was told today by the VSO that there is a case for back pay of TDIU because I have been on SSDI for this same disability. We shall see.

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Hello, let me ask whats on my ole mind reading your post.is the primary reason you were awarded SSDI a major service connected condition? Were you reduced to 70% for one condition or an overall total of sc conditions? Do you see a private practioner that could refute the VA doctor or VA CP examiner findings? Which doctor 'reduced' you ? examiner or staff doc? What was your original service connected rating decision before the 100%, if any? Meaning' did ya start out low, go high (100%) then (70%)? thats dramatic if so.

Your inquiry is a concern, SSA is recognized as a most difficult agency to prove up SSDI and I sure hope you get all the TDIU you deserve. Just keep up with the paperwork, don't give an inch and make sure you have all possible copies of your exams, xrays(written comments at least), lab results, etc. that were used to make this decision. I also hope you have a copy of SSA doctor assessment of your condition, mine validates my sc issue(s) rendering me disabled and unable to work.

I wish you all the best, my questions are just questions,

Cg'up!

They never mentioned the SSA records at all in the decision. They have verified in the past that they had them. I was told today by the VSO that there is a case for back pay of TDIU because I have been on SSDI for this same disability. We shall see.
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Yes, the SSDI condition IS the service connected condition.

Reduced to 70% for one condition.

I saw a private practioner and her letter to the VA said I have been unable to work. However, the VA had this letter when they made this rating reduction.

The VA reduced the rating due to an evaluation a VA doctor had made during a quick appointment in March 2004. It was definitely not a C&P exam.

There was no rating before the 100%, it started at 100%. It was lowered to 70% because there is no percentage inbetween for this disability. You're either 100 or 70.

I have had SSDI for this same condition since 2003 and I applied for TDIU once I received this initial rating last month. I was told that in this case, the VA probably will have an effective date to when I was initially reduced to 70% because it is after the SSDI award date. I hope that's how the VA does it for me.

Hello, let me ask whats on my ole mind reading your post.is the primary reason you were awarded SSDI a major service connected condition? Were you reduced to 70% for one condition or an overall total of sc conditions? Do you see a private practioner that could refute the VA doctor or VA CP examiner findings? Which doctor 'reduced' you ? examiner or staff doc? What was your original service connected rating decision before the 100%, if any? Meaning' did ya start out low, go high (100%) then (70%)? thats dramatic if so.

Your inquiry is a concern, SSA is recognized as a most difficult agency to prove up SSDI and I sure hope you get all the TDIU you deserve. Just keep up with the paperwork, don't give an inch and make sure you have all possible copies of your exams, xrays(written comments at least), lab results, etc. that were used to make this decision. I also hope you have a copy of SSA doctor assessment of your condition, mine validates my sc issue(s) rendering me disabled and unable to work.

I wish you all the best, my questions are just questions,

Cg'up!

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beenwaiting,

Here is a BVA case that explains the five year reduction thing.

I read thru it pretty fast so, it may or may not be helpful to you.

carlie

http://www4.va.gov/vetapp09/files1/0902631.txt

Citation Nr: 0902631

Decision Date: 01/26/09 Archive Date: 02/09/09

DOCKET NO. 07-28 977 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Jackson,

Mississippi

THE ISSUE

Whether the reduction of a 30 percent disability rating for

Chronic Obstructive Respiratory Disorder (COPD) to a 0

percent rating, effective March 1, 2007, was proper.

ATTORNEY FOR THE BOARD

B. Thomas Knope, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1981 to

October 2004.

This matter is on appeal from the Jackson, Mississippi,

Department of Veterans Affairs (VA) Regional Office (RO).

FINDINGS OF FACT

1. Service connection for COPD was granted by rating

decision dated February 2005 with a 30 percent evaluation

effective November 1, 2004.

2. In May 2006, based on objective findings obtained from a

VA examination conducted in April 2006, the RO notified the

veteran of a proposal to reduce the rating for his COPD from

30 percent to 0 percent.

3. By rating decision in December 2006, the RO reduced the

30 percent disability rating for COPD to 0 percent, effective

March 1, 2007.

4. The reductions were carried out in accordance with

applicable procedures.

5. At the time of the reductions in December 2006, the

veteran's COPD had been rated as 30 percent for a period less

than five years.

6. The record demonstrates that, at the time the RO reduced

the 30 percent evaluation assigned to the veteran's COPD,

there had been no periods of incapacitation during the past

12 months attributable to this disability.

CONCLUSION OF LAW

The reduction of a 30 percent disability rating for COPD to a

0 percent disability rating effective March 1, 2007 was

proper. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38

C.F.R. §§ 3.105(e), 3.344, 4.97, Diagnostic Code (DC) 6604

(2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection for COPD was granted in a February 2005

rating decision. A 30 percent evaluation was assigned

pursuant to 38 C.F.R. § 4.97, DC 6604 effective November 1,

2004, the time of the veteran's original claim.

In May 2006, the RO proposed to reduce the veteran's

disability rating based on a VA examination in April 2006.

In December 2006, the RO reduced the rating for COPD from 30

percent to 0 percent effective March 1, 2007. The veteran

appeals the December 2006 rating decision and contends that

his COPD has not improved.

Where a reduction in an evaluation of a service-connected

disability is considered warranted and the lower evaluation

would result in a reduction or discontinuance of compensation

payments currently being made, a rating proposing the

reduction or discontinuance must be prepared setting forth

all material facts and reasons. VA must also notify the

veteran that he has 60 days to present additional evidence

showing that compensation should be continued at the present

level. 38 C.F.R.

§ 3.105(e) (2008).

After completing the predetermination procedures, VA must

send the veteran written notice of the final action, which

must set forth the reasons for the action and the evidence

upon which the action is based. Where a reduction of

benefits is found warranted and the proposal was made under

the provisions of 38 C.F.R. § 3.105(e), the effective date of

the final action shall be the last day of the month in which

a 60-day period from the date of notice to the beneficiary of

the final action expires. 38 C.F.R. § 3.105(i)(2) (2008).

In the present case, the May 2006 notice letter contained a

rating decision reflecting a proposed reduction of the

schedular rating for COPD from 30 percent to 0 percent. The

veteran was notified of the proposed action, the reasons and

bases therefore, and was given the required 60 days to

present additional evidence and to request a hearing. The RO

subsequently implemented the rating reduction in a December

2006 rating decision, with an effective date of March 1,

2007. He was notified of the action taken and his appellate

rights in a December 2006 letter. As such, VA met the due

process requirements under 38 C.F.R. § 3.105(e) and (i)

(2008).

The Board must now consider whether the reduction in rating

was proper. The criteria for a rating reduction is found in

38 C.F.R. § 3.344 (2008). The law provides that, when a

rating has continued for a long period at the same level

(five years or more), any rating reduction must be based on

an examination that is as complete as the examinations that

formed the basis for the original rating and that the

condition not be likely to return to its previous level. 38

C.F.R. § 3.344(a)-©; Kitchens v. Brown, 7 Vet. App. 320,

324 (1995).

A reduction may be accomplished when the rating agency

determines that evidence makes it reasonably certain that the

improvement will be maintained under the ordinary conditions

of life. 38 C.F.R. § 3.344(a). However, where a rating has

been in effect for less than five years, the regulatory

requirements under 38 C.F.R. § 3.344(a) and (b) are

inapplicable, as set forth in 38 C.F.R. § 3.344©. In such

cases, 38 C.F.R. § 3.344© states that reexamination

disclosing improvement will warrant reduction in rating.

In the present case, the previous rating had been in effect

for less than five years. Specifically, the veteran's 30

percent rating was assigned effective from November 2004 and

was reduced in December 2006. As such, the requirements

under 38 C.F.R. § 3.344(a) and (b) do not apply in the

instant case.

Nevertheless, the United States Court of Appeals for Veterans

Claims (Court) has held that several general regulations are

applicable to all rating reduction cases, without regard for

how long a particular rating has been in effect. The Court

has stated that certain regulations "impose a clear

requirement that VA rating reductions, as with all VA rating

decisions, be based upon a review of the entire history of

the veteran's disability." Brown v. Brown, 5 Vet. App. 413,

420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating

reduction requires an inquiry as to "whether the evidence

reflects an actual change in the disability and whether the

examination reports reflecting such change are based upon

thorough examinations." Brown, 5 Vet. App. at 421.

Thus, in any rating-reduction case, not only must the Board

determine that an improvement in a disability has actually

occurred, but that improvement also reflects an improvement

under the ordinary conditions of life and work. When, after

careful consideration of all procurable and assembled data, a

reasonable doubt arises regarding the degree of disability,

such doubt will be resolved in favor of the veteran. 38

C.F.R. § 4.3 (2008).

In considering the history of the veteran's COPD, the Board

notes that the initial disability rating was based on a

December 2004 VA examination, where he underwent a pulmonary

function test (PFT). There, his post-bronchodilator forced

expiratory volume in one second (FEV-1) was 63 percent of

predicted.

In order to warrant a 30 percent disability rating under DC

6604, the veteran must show a post-bronchodilator FEV-1 of 56

to 70 percent, a ratio of FEV-1 to forced vital capacity

(FVC) of 56 to 70 percent, or a diffusion capacity of the

lung for carbon monoxide by the single breath method

(DLCO(SB)) of 56 to 65 percent predicted. On the basis of

his FEV-1 value, the RO determined that a 30 percent

disability rating was warranted.

The RO proposed reduction in rating arose from the results of

a PFT performed during a subsequent VA examination in April

2006. There, the veteran's post-bronchodilator FEV-1 was 98

percent, and his ratio of FEV-1/FVC was 104 percent of

predicted.

The veteran underwent a second VA examination in April 2007.

There, he underwent another PFT where his post-bronchodilator

FEV-1 was 90 percent of predicted and his FEV-1/FVC was 102

percent.

In order to warrant a compensable rating for COPD, the

veteran must show an FEV-1 of 71-80 percent predicted; a FEV-

1/FVC of 71-80 percent; or DCLO(SB) of 66-80 percent

predicted. 38 C.F.R. § 4.97, DC 6604. Therefore, on the

basis of the results from the April 2006 and April 2007 VA

examinations, the RO reduced his disability rating to 0

percent in December 2006.

After considering the pertinent medical history as detailed

above, the Board finds that the evidence supports reducing

the veteran's rating for COPD from 30 percent to 0 percent.

In both the April 2006 and April 2007 examinations, he

exhibited PFT values that were better than that required for

a compensable rating. Although he argued that the results

from the April 2006 were inaccurate due to the examiner's

lack of experience operating the PFT equipment, the Board

notes that his results in both the April 2006 and April 2007

PFTs were substantially similar. Therefore, the Board

concludes that the PFT results from April 2006 were not in

error.

In reaching these conclusions, the Board acknowledges the

veteran's statements that he frequently has to clear his

throat, spits out phlegm and that he quickly loses strength

in voice, which is vital in his role as a preacher and

singer. The Board recognizes that he is competent to report

the symptomatology he experienced as it comes to him through

his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994).

However, in this case, the Board attaches greater probative

weight to the clinical objective findings of skilled, as

these findings speak to the criteria necessary to rate the

veteran. See Cartright v. Derwinski, 2 Vet. App. 24, 25

(1991) (holding that interest in the outcome of a proceeding

may affect the credibility of testimony). Specifically, the

Board relies on the results of the two PFTs conducted in

April 2006 and April 2007, both of which indicate that his

COPD has improved since his initial VA examination in

December 2004.

Additionally, the veteran has submitted private outpatient

treatment records from April through June 2007 which noted

congestion and gastroesophageal reflux disease. However,

such symptoms are not probative to the relevant rating

criteria. For these reasons, the Board finds that the

competent evidence satisfies the regulatory standards of 38

C.F.R. § 3.344© for a rating reduction for his COPD.

In conclusion, the RO's reduction of the veteran's COPD from

30 percent to 0 percent is found to be warranted by the

evidence of record. As the preponderance of the evidence is

against the claims, the benefit of the doubt rule does not

apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1

Vet. App. 49, 54-56 (1990).

Finally, as provided for by the Veterans Claims Assistance

Act of 2000 (VCAA), VA has a duty to notify and assist

claimants in substantiating a claim for VA benefits.

38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002

& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as

amended), 3.326(a) (2008).

Upon receipt of a complete or substantially complete

application for benefits, VA is required to notify the

claimant and his or her representative, if any, of any

information, and any medical or lay evidence, that is

necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);

38 C.F.R. § 3.159(b); Quartuccio v. Principi,

16 Vet. App. 183 (2002).

Proper notice from VA must inform the claimant of any

information and evidence not of record (1) that is necessary

to substantiate the claim; (2) that VA will seek to provide;

(3) that the claimant is expected to provide; and (4) must

ask the claimant to provide any evidence in her or his

possession that pertains to the claim in accordance with 38

C.F.R. § 3.159(b)(1). This notice must be provided prior to

an initial unfavorable decision on a claim by the RO.

Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);

Pelegrini v. Principi, 18 Vet. App. 112 (2004).

While the veteran did not receive a VCAA letter, per se, the

procedural framework and safeguards set forth in 38 C.F.R. §

3.105(e) and 38 C.F.R. § 3.344 were fully satisfied.

Specifically, he was given notice of a proposed rating in May

2006, told that he could request a pre-determination hearing,

and was provided sufficient opportunity to present additional

argument and evidence in opposition to the proposed action.

Thus, he was notified of the necessary information to

substantiate his claims for restoration prior to the

reductions in these matters.

The veteran was given further notice and a meaningful

opportunity to participate effectively in the processing of

his claims after the reductions were effectuated by rating

decision and notification letter dated in December 2006. The

Board finds that the compliance provisions of 38 C.F.R. §

3.105(e) and 38 C.F.R. § 3.344 satisfy due process

requirements.

Significantly, the veteran has not identified, and the record

does not otherwise indicate, any additional existing evidence

that is necessary for a fair adjudication of the claims that

has not been obtained. Hence, no further notice or

assistance is required to fulfill VA's duty to assist in the

development of the claims. Smith v. Gober, 14 Vet. App. 227

(2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.

Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.

Principi, 16 Vet. App. 183 (2002).

ORDER

The reduction of a 30 percent disability rating for COPD to a

0 percent disability rating effective March 1, 2007 was

proper.

____________________________________________

K. OSBORNE

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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Thanks for this information but it does not apply in that my initial rating letter was dated back to April 2001 and I just received the rating in December 2009. So they said from April 2001 until March 2004 I was at 100% and from March 2004 until now they rated me at 70%. In this explanation you sent me, this veteran was afforded 60 days before the rating was reduced. I have not had any warning before the rating was reduced. They just went down to 70% like that. But I've had SSDI since 2003 for this condition, so in all probability, any TDIU that may be awarded will be retroactive to when they reduced it.

Hello, let me ask whats on my ole mind reading your post.is the primary reason you were awarded SSDI a major service connected condition? Were you reduced to 70% for one condition or an overall total of sc conditions? Do you see a private practioner that could refute the VA doctor or VA CP examiner findings? Which doctor 'reduced' you ? examiner or staff doc? What was your original service connected rating decision before the 100%, if any? Meaning' did ya start out low, go high (100%) then (70%)? thats dramatic if so.

Your inquiry is a concern, SSA is recognized as a most difficult agency to prove up SSDI and I sure hope you get all the TDIU you deserve. Just keep up with the paperwork, don't give an inch and make sure you have all possible copies of your exams, xrays(written comments at least), lab results, etc. that were used to make this decision. I also hope you have a copy of SSA doctor assessment of your condition, mine validates my sc issue(s) rendering me disabled and unable to work.

I wish you all the best, my questions are just questions,

Cg'up!

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