[Vfw Will Defeat Bachmann Plan]

The complete Bachmann plan

SOURCE:

http://bachmann.house.gov/UploadedFiles/01_24_11_Potential_Spending_Cuts_and_Estimated_Money_Saved.pdf

Potential Spending Cuts and Estimated Money Saved

Agriculture:

$20 Billion Replace farm subsidies with farmer savings accounts, eliminating the Foreign Agriculture Service, merging and

trimming budget of four agriculture outreach and research agencies, and funding the Food Safety and Inspection

Service with user fees.

Community:

$8 Billion Eliminate the Community Development Block Grant program, Rural Utilities Service, Economic Development

Administration, Neighbor-Works America, Appalachian Regional Commission, Denali Commission, Minority

Development Business Agency, and Delta Regional Authority, and consolidate the Rural Housing and

Development Programs and convert them into block grants.

Education (2 options):

1: $31 Billion Abolish US Department Of Education, and invest half (of $46 Billion budget) back to states by block grants, and

return Pell Grants to 2009 levels

2: $29 Billion Scale back Department of Education, Stop payout of the balance of the stimulus incentive grants for Race to the

Top, eliminate duplicative grants, and return Pell Grant to 2009 levels

Energy and the Environment:

$10.9 Billion Eliminate and reduce certain block grant and devolve EPA grants, restructure Power Marketing

Administrations to be market-based, eliminate Science to Achieve Results Program

Government Reform:

$44 Billion Halve federal program payment errors by 2012, especially by reducing Medicare errors and earned income tax

credit errors, tighten oversight by spending $5 billion on new resources, such as updated computer systems, and

then recover $49 billion in payment errors.

$20 Billion Rescind unobligated balances after 36 months.

$24.5 Billion Halve the $25 billion spent to maintain vacant federal properties, cut federal employee travel to 4 Billion, suspend

acquisition of federal office space, trim federal office fleet by 20%, eliminate Presidential Election Campaign Fund,

cut down on federal employee credit cards, and require federal employees to fly domestic coach.

Health Care:

$12.2 Billion Reform Medigap, require Medicare home health co-payments, eliminate Maternal and Child Health block grant,

eliminate Title X family planning, eliminate National Health Service corps, eliminate health professions grant, and

repeal rural health outreach and flexibility grants, and defund Planned Parenthood and affiliated Federal grants to

abortion facilities – federal, state, local

Unknown Repeal Obamacare (larger savings in later years).

Homeland Security:

$2.7 Billion Eliminate most DHS grants to and allow states to finance themselves.

Interior:

$1.7 Billion Open Arctic National Wildlife Refuge to leasing. (The savings are

leasing revenues, which are classified as negative spending in the federal budget), and suspend other federal land

purchases.

International:

$4 Billion Eliminate the Development Assistance Program, State Department education and cultural exchange programs,

International Trade Administration’s trade promotions, the democracy fund, International Trade Commission,

Trade and Development Agency, Overseas Private Investment Corporation, East-West Center, US Institute of

Peace, Japan-US Friendship Commission

Justice:

$7.8 Billion Eliminate all Justice Department grants except those from the Bureau of Justice Statistics and the National Institute

of Justice, thereby empowering states to finance their own justice programs, eliminate Legal Services Corporation,

DOJ Community Relations Service, National Drug Control Policy, State Justice Institute, and Reduce funding of

DOJ Civil Rights division.

Labor:

$7.4 Billion Eliminate federal job training programs, Job Corps, and Senior Community Service Employment Program, and

improve screening for food stamp eligibility

Science

$1.9 Billion Reduce National Science Foundation funding to 2008 levels, eliminate National Science Foundation spending on

elementary and secondary education, and eliminate business subsidies from the National Institute of Standards and

Technology.

Transportation:

$60.7 Billion Devolve the federal highway program and most transit spending to the states, Privatize TSA, FAA, and Amtrack.

Eliminate grants to large and medium airports, eliminate the Maritime Administration, and the Essential Air Service

Program.

Treasury:

$26.7 Billion Eliminate the additional child refundable credit, and the Community Development Financial Institutions Fund.

Veterans:

$4.5 Billion Cap increases in Department of Veterans Affairs health care spending, and reduce disability compensation to

account for SS disability payments. Reduce Veterans’ Disability Compensation to account for Social Security

Disability Insurance payments.

Other:

$60 Billion Repeal unspent stimulus spending.

$16 Billion Eliminate all congressional earmarks (FC)

$8 Billion Switch to using the “Superlative CPI” in funding calculations.

$7 Billion Impose 3 yr pay freeze on federal workers and DoD civilians (FC)

$6.7 Billion Eliminate Federal Communications Commission funding for school Internet service, eliminate National

Community Service programs, Institute of Museum and Library Services, National Endowment for the humanities,

National Mediation Board, National Endowment for the Arts, Army Corp of Engineer funding for beach

replenishment projects, Commission of fine arts, National Council on Historic Preservation, and ban project labor

agreements on all federally funded construction projects.

$6 Billion Repeal the Davis–Bacon Act.

$2 Billion Repeal Dodd-Frank (based on 5yr CBO Estimates)

$1.4 Billion Repeal Food Safety & Modernization Act

Defense:

$35.6 Billion According to Secretary Gates ( $178 Billion 5 year projections)

[Been Trying To Get A 100% Id Card..and The Va Is Playing Games]

I would just like to add that the T&P 100% or TDIU information, can be taken to any military reserve training center in order to get the cards.

[Updated List Of Ships With Presumed Exposure To Agent Orange]

Updated list of Ships with presumed exposure to agent orange

Attached as PDF file

http://www.bluewaternavy.org/shiplist3.pdf

http://www.bluewaternavy.org/newspage2.htm

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:

http://www.angelfire.com/il2/VeteranIssues/

[Vfw Will Defeat Bachmann Plan]

No surprize to me.

My SSD and VA benefits combined is about equal to the VA Pension award for vet with spouce. If SSD benefits were stopped, it would put me in a position to have to file for VA pension. I can see quite a few Vets may have to do the same thing. In turn doing nothing but putting more strain on Pension benefits.

If they offset SSD, then your medicare is stopped also. Doing nothing but shifting the health care need to the VA system.

Why can't they keep their hands off of earned benefits? And why do they try to re-lable them as entitlements?

Thanks for allowing open discussion for this post.

Allan

[Sweeeeeeeeeeeeet]

Congratulations Carlie.................

[Vfw Will Defeat Bachmann Plan]

fwd from: Colonel Dan

VFW Will Defeat Bachmann Plan

WASHINGTON (January 28, 2011) — America's oldest and largest major combat veterans' organization announced it will do everything within its power to defeat a plan introduced by Rep. Michele Bachmann (R-Minn.) to cut $4.5 billion from the Department of Veterans Affairs.

"No way, no how, will we let this proposal get any traction in Congress," said Richard L. Eubank, the national commander of the 2.1 million-member Veterans of Foreign Wars of the U.S. and its Auxiliaries.

On her website, the three-term congresswoman lists more than $400 billion in suggestions to cut federal spending. The VA suggestion would cap increases to VA healthcare spending, and reduce disability compensation to account for Social Security Disability Insurance payments — in other words, an offset. She says her plan is intended to generate discussion.

"The only discussion the VFW wants is to tell the congresswoman that her plan is totally out of step with America's commitment to our veterans," said Eubank, a retired Marine and Vietnam combat veteran from Eugene, Ore.

"There are certain things you do not do when our nation is at war, and at the top of that list is not caring for our wounded and disabled servicemen and women when they return home," he said. "I want the congresswoman to join us in a tour of the Minneapolis VA Medical Center and Poly Trauma Center the next time she's in her home district to witness firsthand the great work the VA does every day to heal their wounds and ease their pain. Then I want her to look those disabled veterans in the eye and tell them their service and sacrifice is too expensive for the nation to bear.

"The day this nation can't afford to take care of her veterans is the day this nation should quit creating them," said Eubank.

-30-

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:

http://www.angelfire.com/il2/VeteranIssues/

[Starting To Go Crazier.]

Thanks for helping Veldrina. We need all the help we can get.

Papa,

do yourself a big favor and get a two to three drawer file ca. with deviders.

Start putting everything in it by yrs. One drawer for ratings, C&P's and corespondence. The other for medical records.

When you've done this, you'll be ready to turn it over to an attorney and find them anything they want.

Allan

[Bi-Polar]

Welcome to hadit.com

Bipolar may not be hereditary, but is common with head injurys, and conditions like MS. Have you and your brother recieved TBI's or head injuries during your deployment?

I've been taking Depacote for over three yrs with good results for the depression and Mania. Also take buspar for anxiety.

[Vamc-Varo?]

The VAMC & VARO rating dept comunicate over conditions you file a claim for. Yes, they will send the results of the AO tests to the VARO. You may also be recorded with audio and video without informing you.

If you need copies of the results, request it in writing through the VAMC may be faster.

For QTC copies you need to request through the VARO.

Allan

[Anyone Been Diagnoses With Ms?]

Here's a couple things I found out about diagnosing MS.

They look for certain bands in the spinal fluid sample. But 20% of all MS patients show normal spinal fluid samples.

They also look for scatered lesions in the white matter with at least one lesion in the corpus callosum in your MRI.

Have they performed an MRI on you?

Check out this link for MS symptoms you may have.

Multiple Sclerosis Symptoms

http://www.mult-sclerosis.org/mssymptoms.html

Allan

I had a blood test to have my DNA tested for Myotonic Dystrophy.. the results should come any day now, I only just had the blood drawn yesterday, per a doctors request from a neurologist at the VA..

[8018 Multiple Sclerosis?]

[Allan, Has the VA conceded/admitted into record a current diagnosis of MS? ~Wings]

Wings,

yes the RO finally excepted the diagnoses of MS I have.

Now their playing games denying on the bases it wasn't diagnosed in service.

Dr Bash's IME stated he felt it was service connected due to in-service symptoms.

Service records are: Color blindness, fluctuating vision, a report that I had trouble with my eyes and a specific type of hearing loss he said links to MS.

I remember the eye trouble in basic. The eye socket was all inflamed and my eyes were blury for a couple weeks.

Separation examination was clearly marked,"visual defect" as one of the remaining defects. Also marked was color blindness.

They denied, stating Dr bash claimed the above and then said, " I had no visual problems in service"?.

They kept repeating, a claim for MS may still be granted if I can prove a diagnoses during or shortly after service.

Talked to my CAVC attorney office and they said , "no problem taking over the MS claim and all my remaining issues at the VARO level. I didn't think of asking him before. Thought he was handling the CAVC and thats all he was allowed.

It feels good to have it done by one law firm i've already signed the POA with..

**************************************

Notes:

See Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007). Ingram made clear that the claimant's intent in filing a claim is paramount to construing its breadth, especially because "t is the pro se claimant who knows what symptoms he is experiencing that are causing him disability." Id.

See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (Board must consider only independent medical evidence, not its own unsubstantiated opinion medical judgment).

Ingram v. Nicholson I haven't read before. Bet the entire VARO staff handling my claim never has either or they choose to ignor it just like they do, (Board must consider only independent medical evidence, not its own unsubstantiated opinion medical judgment).

A rating officer can make up any unsubstantiated opinion that pops in their brain and call it "claim resolved for today".

With the illnesses I have, they can deny it another 15 yrs, i''ll be pushing 80 and never see a dime of it. (deny til you die)

The single question they requested the QTC examiner to answer last May for the MS claim was,"does the Vet have a neurological disorder"?

The examiner said he discovered I did. That's as far as the Rater cared to take it. Than they denied again on the bases it wasn't diagnosed in service and blew off Dr Bash's opinion as to symptoms. (NO DIAGNOSES DURING SERVICE)

Allan

[8018 Multiple Sclerosis?]

Thanks Wings. I already figured out my SO is probably in bed with the rating dept or used to work for them.

Trying to get it all turned over to an attorney right now.

Have one that wants to take the case for MS at the VARO level, but I already have one for my CAVC spinal claims I’ve had in for nearly 14 yrs. I don't know if I can have them both, if my attorney for the CAVC will handle the MS claim at the VARO level or what right now.

Need to get on the phone in the morning to find out before I sign this POA.

I am not dropping any MS secondary issues. I was already rated 100% total disability with MS for Pension considering all the secondary issues.

This last denial for MS was just like the others. They deny on the bases that I had no diagnoses in service of MS and absolutely refuse to look at symptoms while pretending to be medical specialists. They claim I had no visual problems while my separation examination clearly lists "visual defects" as one of them.

Color blindness, fluctuating vision and ocular inflammation is what my records show. Three yrs of four yr enlist medical records are missing so they didn't leave me with much.

However, to clearly state records were absent of "any" visual defects is a fraudulent statement.

If I were making such statements to obtain the benefits, they would lock me up.

Since their so called C&P for MS, consisted of a single question from the rater to the examiner of, " examine for a neurological disorder" , I’m asking for an adequate, complete exam for MS with opinion as to service connection or not and to review every symptom in service of MS

Last I checked raters don't carry an MD's license, There fore they shouldn't be allowed to carry more weight in their medical opinions of a complex neuromuscular disorder than Dr Bash. Especially if they do not know the symptoms of MS or that MS can be service connected on those symptoms.

We denied it because you didn't have it diagnosed in service is all they can come up with.

I cannot help thinking a good attorney can put a stop to this merry-go-round and take this stress away.

Thanks for letting me get this off my chest. I hope it helps other Vets trying to get their MS claims approved to see what I am going through.

Allan

[8018 Multiple Sclerosis?]

With a claim for 8018 Multiple sclerosis, should a veteran file for MS only with no secondary issues?

I read that MS alone provides a 30% rating. My SO is claiming I would be better off to drop the secondary issues of fatigue, urinary, balance, bipolar, cognitive issues, etc until i'm rated for MS. Than file for the secondary issues.

It took 13 yrs to recieve a firm diagnoses and my claim for MS has been on hold for the last 5 yrs.

At age 62 I really don't want to spend the next 10 yrs fighting for secondary issues. He's saying it's hurting my claim from being approved.

I was sent for a C&P for other claims last May. While there the VARO asked the examiner to examine me to see if I have a neurological disorder while I have a current claim for MS before them to decide.

Shouldn't I have had a complete C&P examination of me and my records that show current diagnoses of MS and have the examiner determine if it's service connected or not?

The examiner sent a seperate letter that he discovered I had a neuro problem and should bring it to my PCP's attention.. No duh?

Sence they denied my claim again a couple weeks ago, should I request in my NOD to have another C&P asking the examiner to determine if my current diagnoses (they've finally reconized) is service connected, or does the rater determine that with their professional medical opinion?

Thanks for any replies.

Allan

[Dro Hearing]

If your SO recomends an informal hearing, don't except it. Always request a formal hearing an get sworn in. Any evidence or testomony submitted during an informal hearing does not get entered into your record. It's a legal hearing so you must be sworn in for it to count for anything.

Start with the evidence for each claimed condition. If you feel you need a C&P examination or specific diagnostics, it would be a good time to bring it up for developement.

You need to have it clearly layed out so your rep and the DRO understands it.

A few weeks after the hearing, request a copy of the transcript to check for accuracy.

Hope this helps

Allan

[Multiple Sclerosis Update]

Multiple Sclerosis Update

http://www.veteranstoday.com/2010/11/19/multiple-sclerosis-update/

[Waiver Of Regional Office Consideration]

This waiver is a great time saver. Each time the BVA remands the claim back to the RO to consider the evidence, it may sit a yr or so before they get to it.

Once your at the BVA, keep your claim in their hands until it's finalized. The AMC is dead time and remands back to the RO are long delays.

[Ed And Smc]

I don't see levitra, cialis or viagra on the VA formulary.

Does VA provide any treatment for ED?

http://www.pbm.va.gov/natform/VA%20National%20Formulary-October%202010.xls

[Am I Eligible For Smc-S]

The first decision after filing for ILS, the claim is likely to be denied.

But atleast they will have to determine if your eligible for voc-rehab employment training by applying for it.

If it's determined that you don't qualify for employment training and decide you need ILS after recieving a denial, simply ask for reconsideration or file a NOD. It's generally aproved the second time around.

No matter what you apply for with the VA it seems to be a long drawn out process.

Allan

[Am I Eligible For Smc-S]

dsgsr,

Even if your not qualified for Voc Rehab for re-employment, you would still qualify for Independent Living Services(ILS) through Voc Rehab.

In order to qualify you must be deemed unfit for rehab employment due being 100% disabled with atleast 20% service connected issues.

.

Some training is availble through ILS services, although it is primarily used to help you be less dependent on others and your enviroment.

Allan

[Multiple Sclerosis Center Of Excellence]

Multiple Sclerosis Center of Excellence

http://www4.va.gov/ms/

[Vcaa Letter: Questions?]

Thanks Halos and everyone that responded,

but just received the denial for MS and secondary issues in the mail and another VCAA for the issues they left undecided from last Feb 2010 and the C&P's they sent me for last spring.

Also, see six new claims I guess the C&P examiner said needed filed on since the issues were all in his report, they want me to send in evidence in the VCAA letter. I am currently receiving 20%SC for chronic residuals of a testicular mass surgery I had in service. They sent me for a C&P & the examiner noted an increase with chronic residual issues. They say this is being deferred pending sending in evidence that I had the testicular mass surgery in service they have awarded SC for back in 1997. They claim it is now a non-service connected problem.

I thought if the problem was chronic in service, that you did not have to prove continuity after service, but now they say I must prove I have had this continually since service. How about the fact they have been paying me for it for the last 13 yrs and it’s listed on my exit exam as one of the continuing health problems? Do you have to pass an exam for idiocy to work as a rater?

They finally acknowledged Dr Bash's IMO and that I have a current MS diagnoses, but omitted part of his nexus so it makes no since and to make it look like no in-service symptoms.

Service exit examination showed visual defect and hearing loss. The visual defect is fluctuating vision. They wrote in the denial that the entrance and exit eye exams showed 20/50 and left it at that to show no change. What they omitted in their statement was the exams in between that showed fluctuating vision.

Also in the denial they put down a "new" claim for vision loss and want me to send in evidence in the new VCAA letter proving it.

Here is another bone I’d like to pick on.

I was awarded SC for a shoulder injury in a car accident in May 09. They gave me a low ball rating of 10% without a C&P to determine the shoulder condition after it was remanded to them by the BVA.

After I filed a NOD, they requested a C&P and said it was to determine the shoulder condition

I had one in March 2010 and in April. Instead of making a decision in the June 2010 decision, the Sept decision and the Nov 2010 decision, it was once again deferred.

Can’t they make a decision on what they have before them and be done with it for once? There is no need to string this out since they have been sitting on the shoulder C&P results since last spring.

It’s deny everything you can first and delay what you know you’re going to have to award as long as you can.

These people need time limits just as they give us.

Thanks everyone for letting me get it off my chest. I know you all have your own problems with the VA’s tactics designed to drive us insane.

I will call my SO about this today, but can tell you now he will have no advice as my legal council to offer.

Decided to just turn the MS claim over to an attorney when I can find one in the Seattle area. Getting sick and tired of their stupid shell games.

[Vcaa Letter: Questions?]

Back in Sept I recieved a VCAA letter asking me to answer specific questions.

In this letter it stated I do not have a current diagnoses of MS. That I was never diagnosed or treated for MS during service and that I needed to send them evidence to these questions ansd that I had 30 days to reply.

According to My SO I didn't need to respond to the letter. He claims it's just a VA generac VCAA letter and that I was way to specific with my reply. He said I typed it up like a lawyer.

I put the reply on a 21-4138, answered every question for in service MS symptoms, a current diagnoses of MS by Dr Bash in 2005, plus diagnoses of secondary mental issues of MS by two VA psychatrists, and a Nexus medically explained by Dr Bash and supported by service medical records. I've also been treated for MS with medication from my VA PCP and a VA psychiatrist since 2005.

I underlined everything I refered to as so a second grader could understand it and attached the evidence to it with my claim number on every sheet. Also sent copies to my SO.

I've tried sending it just to my SO and asking him to turn it in to the VA, but found out he doesnt do that. So I make sure the VA gets it from me instead of going just through him.

He said it doesn't look like the VARO listed Dr Bash's IMO and diagnoses of MS in the list of evidence or given it any weight since they claim I do not have a current diagnoses of MS.

My question is, are VCAA notices something we need to reply to, or just blow them off as unimportant generac notices like, "we're still processing your claim" and forget about it?

The way the VCAA notice read to me was, I better take it serious and give them everything they need in a reply within the 30 days or look for a denial ASAP. My SO disagrees.

Thanks for any replies and clearification on this.

Allan

[Lawyer, Wife Accused Of Stealing From Vets]

Lawyer, wife accused of stealing from vets

http://www.airforcetimes.com/news/2010/11/ap-stolen-veterans-benefits-110810/

[3.103 Procedural Due Process And Appellate Rights.]

3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice:

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in §3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary’s or fiduciary’s failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a). (Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

© The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant’s home having adjudicative functions or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record. (Authority: 38 U.S.C. 501(a))

(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.

(e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. (Authority: 38 U.S.C. 501, 1115, 1506, 5104)

[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16359, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001]

Supplement Highlights references: 7(2), 9(3), 10(2), 10(3), 48(1).

http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_103.DOC

[§3.105 Revision Of Decisions.]

§3.105 Revision of decisions.

The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.

(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office

© Character of discharge. A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions of paragraph (d) of this section.

(d) Severance of service connection. Subject to the limitations contained in §§3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of §3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. (Authority: 38 U.S.C. 5112(b)(6))

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. (Authority: 38 U.S.C. 5112(b)(6))

(f) Reduction in evaluation—pension. Where a change in disability or employability warrants a reduction or discontinuance of pension payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that pension benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the final rating action is approved. (Authority: 38 U.S.C. 5112(b)(5))

(g) Reduction in evaluation—monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans. Where a reduction or discontinuance of a monetary allowance currently being paid under 38 U.S.C. chapter 18 is considered warranted, VA will notify the beneficiary at his or her latest address of record of the proposed reduction, furnish detailed reasons therefor, and allow the beneficiary 60 days to present additional evidence to show that the monetary allowance should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if VA does not receive additional evidence within that period, it will take final rating action and reduce the award effective the last day of the month following 60 days from the date of notice to the beneficiary of the proposed reduction. (Authority: 38 U.S.C. 1822, 5112(b)(6))

(h) Other reductions/discontinuances. Except as otherwise specified at §3.103(b)(3) of this part, where a reduction or discontinuance of benefits is warranted by reason of information received concerning income, net worth, dependency, or marital or other status, a proposal for the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that the benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final adverse action will be taken and the award will be reduced or discontinued effective as specified under the provisions of §§3.500 through 3.503 of this part. (Authority: 38 U.S.C. 5112)

(i) Predetermination hearings.

(1) In the advance written notice concerning proposed actions under paragraphs (d) through (h) of this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action.

(2) Following the predetermination procedures specified in this paragraph and paragraph (d), (e), (f), (g) or (h) of this section, whichever is applicable, final action will be taken. If a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or beneficiary, death of an immediate family member, etc. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record including any additional evidence obtained following the hearing pursuant to necessary development. Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the beneficiary and his or her representative, setting forth the reasons therefor and the evidence upon which it is based. Where a reduction or discontinuance of benefits is found warranted following consideration of any additional evidence submitted. the effective date of such reduction or discontinuance shall be as follows:

(i) Where reduction or discontinuance was proposed under the provisions of paragraph (d) or (e) of this section, the effective date of 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.

(ii) Where reduction or discontinuance was proposed under the provisions of paragraphs (f) and (g) of this section, the effective date of final action shall be the last day of the month in which such action is approved.

(iii) Where reduction or discontinuance was proposed under the provisions of paragraph (h) of this section, the effective date of final action shall be as specified under the provisions of §3.500 through §3.503 of this part. (Authority: 38 U.S.C. 5112)

[26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222, May 14, 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65845, December 19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR 51278, Sept. 30, 1997; 66 FR 21874, May 2, 2001; 67 FR 49586, July 31, 2002]

Cross references: Effective dates. See §3.400. Reductions and discontinuances. See §3.500. Protection; service connection. See §3.957.

Supplement Highlights references: 31(1), 46(1), 54(2).

http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_105.DOC