broncovet

Thanks Berta, your input is well appreciated and informative. I would like to add attorney Katrina Eagles take on this: Let the Appellate Process Begin! Katrina J. Eagle, Attorney at Law http://www.wildhaberlaw.com/ As a veteran's advocate, you may have helped a veteran-client complete the VA's application for compensation and, or pension (VA form 21-526). Some months later, the client calls to inform you that he or she has just received notice of a rating decision from the VA Regional Office denying the claim. The following materials will help guide you through the initial appeals process at the Board of Veterans' Appeals (aka "BVA" and, or "the Board") or at the U.S. Court of Appeals for Veterans Claims (aka "the Veterans Court" or "the CAVC"). ........ (In the interest of space, portions of Ms. Eagle's advice has been removed)..... Analyzing a BVA Decision for the following types of substantive errors: BVA findings of material fact that are "clearly erroneous": Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied Failure to comply with a BVA or CAVC remand order Failure to reopen a claim supported by new and material evidence Failure to consider a claim or legal theory reasonably raised by the record Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record The BVA's Failure to Explain Why It Rejected Positive Evidence Supporting the Claim Keys to Filing an Appeal to the CAVC The BVA decision must be "final", which means it must be a denial of a claim for benefits. If the BVA remands a claim for benefits to the VARO, then the BVA decision is not appealable to the Veterans Court. What if it's a multi-issue BVA decision, with one issue is denied, but others are granted or remanded? Determine whether any of the issues are "inextricably intertwined". If so, then the Veterans Court may conclude, after the appeal is filed that the denied issue must be readjudicated with the remanded issue, thus relinquishing its jurisdiction to consider the denied claim. Note that the "inextricably intertwined" test is not particularly objective. Thus, if uncertain as to the reviewability of a partial remand, then advocate should file a protective Notice of Appeal (NOA) with the Veterans Court. The NOA must be received or mailed using the U.S. Postal Service within 120 days of the date of the BVA decision. The 120-Day Clock starts ticking when: 1. BVA mails decision to last known address of veteran; and, 2. If veteran has representative, BVA sends copy to rep by any means so that reasonable to reach rep approximately same time as BVA decision reached veteran. BVA has Presumption of Regularity on their side. How to overcome it: clear evidence to the contrary. If you missed the 120-day deadline to file the NOA, then Equitable Tolling may be available to excuse the 120-day requirement. Consider whether the underlying facts of your situation are similar to cases in which the Federal Circuit excused the 120-day deadline: 1. The veteran was mislead or induced by the VA into missing the deadline for filing the NOA (see Jacquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002)); or, 2. The veteran actively pursued his judicial remedies but misfiled the pleading by sending it to the wrong location within the 120-day deadline for filing the NOA (see Jacquay); or, 3. The veteran's failure to file timely was the direct result of a physical or mental illness that prevented the claimant from engaging in rational thought or deliberate decision making or rendered the claimant incapable of handling his or her own affairs or unable to function in society (see Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005). NOTE: Negligence will never be an acceptable reason for the 120-day requirement to be equitably tolled. Pursuant to Rule 3© of the Veterans Court's Rules of Practice and Procedure, the following information must be included on a timely-filed NOA to be considered compliant: 1. The most recent name, address, and telephone number of the person(s) taking the appeal and the appropriate VA claims file number; and, 2. Reasonable identification of the actual Board decision being appealed and a statement that can be reasonably construed as seeking Court review of that Board decision; and, 3. If filed by a representative, other than one making a limited appearance, be accompanied by a notice of appearance and its attachments. Keys to a Successful Appeal to the US CAVC 1. Know the organization of the Veterans Court: The CAVC is the federal court that hears appeals from the BVA. The CAVC is "young" in that it is only 20 years old; it was created in 1988, when Congress passed Veterans' Judicial Review Act. The CAVC consists of seven judges who are appointed by the President to fifteen-year terms. Chief Judge William P. Greene, Jr. has sat at the helm of the CAVC since August 2005. The CAVC is an appellate court, so it hears no new testimony, conducts no trials, and considers no new evidence. Instead, it considers the BVA decision, the administrative record that was before the VA, and briefs of the parties before it. 2. The Veterans Court's Scope of Review a. Regarding Applications of Law Pursuant to 38 U.S.C. § 7261(a)(3), the Veterans Court has the authority to set aside pure issues of law as unlawful if the Court finds them to be, among other things, "arbitrary, capricious, [or] an abuse of discretion," "in violation of statutory right," "not in accordance with law," or "without observance of procedure required by law." See Horowitz v. Brown, 5 Vet.App. 217 (1993). When reviewing pure issues of law, the Court reviews the VA's resolution of the issue de novo, with no deference to the BVA's view of the law. b. Regarding Adverse BVA Findings of Fact The Court reviews BVA findings of fact under a "clearly erroneous" standard; see 38 U.S.C. § 7261(a)(4). c. Regarding Issues Applying Law to Fact The Veterans Court will give some deference to BVA determinations involving mixed issues of fact and law. The Court will not put themselves in the position of the VA and decide what they would have done given same set of facts and law. Thus, here the Court applies a deferential standard of review, and will not set aside a BVA decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 38 U.S.C. § 7261(a)(3)(A) d. Issues Beyond the Veterans Court's Power To Review i. In most cases, the Veterans Court does not have the authority to resolve issues that were not resolved by the BVA prior to the appeal to the CAVC. This limit on its power to review is based on two principles: 1. The Veterans Court is an appellate court with limited jurisdiction. Pursuant to 38 U.S.C. § 7261(a)(3), the Court is prohibited from making factual findings in the first instance. 2. As a reviewing court, the Veterans Court's role is to determine the propriety of the action taken by the BVA, judged solely on bases invoked by the agency. This is a fundamental rule in administrative law. ii. The Veterans Court may not review findings of fact made by the BVA that are favorable to the claimant. Similarly, recent case law seems to indicate that the Veterans Court must accept a BVA or RO ruling that resolves in the claimant's favor an issue that is partly factual and partly legal in nature. See, e.g., Williams v. Principi, 15 Vet. App. 189, 198 (2001) (holding that the Court could not review a favorable BVA ruling on the appropriate effective date for award of benefits). iii. The Veterans Court is prohibited from reviewing the propriety of the schedule of ratings for disabilities as specified by Congress or as promulgated by the Secretary of the VA. BUT, the Veterans Court does have authority to review the BVA's interpretation of the rating schedule. See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004) iv. The CAVC does not have jurisdiction to review the VA Secretary's exercise of authority under 38 U.S.C. § 503(a) to grant equitable relief to claimants due to administrative error on the part of the VA. The distinction here is the Secretary's authority to grant relief based on principles of equity from his authority to award benefits based upon statutory entitlements.

I think you have been given good advice, however, VA has their "weasel clauses" and they are not "Santa clauses"! Therefore, to protect your Aunt, if she has POA, then she should file her hubbies claim for him. If your uncle hasnt given her POA, then maybe Auntie can get hubbie to sign it..just push a POA form in front of him, and telling him that this gives his wife POA over possible VA benefits in the future, and wont hurt him. JMHO. Maybe he doesnt want benefits for himself, but he probably will be releived thinking "Auntie" is taken care of.

Everyone: Attorney Forristal names two types of valid CUE's: 1. Failure to Fully & Sympathetically Develop Claim, citing Moody v. Principi 2. "Constructive Receipt" citing 38 CFR 3.156© Using Newly Added Service Records If you have another "type" of valid CUE that you have won, or know of another type of CUE case that has been won (or lost!) please post it, as time after time Vets ask, "Is this CUE?" Also would be helpfull if you went for a CUE and lost your case, POST THAT too, so that other Vets dont do the same. Forestil cited what is NOT CUE. Carlie: I could not find the "Cue" forum you mentioned, please post a link..thanks.

It sounds like they burned up those regulations in the 1972 St. Louis fire, because that would just cost the VA too much money.

You can use these compensation tables, but when you are figuring your retro, you have to figure them different each year...1996 pay scale in 96, 1997 in 97, etc. If you are awarded benefits in 2010, retro to 1997, you cant use the 2010 rate for 13 years, even tho that would be fair. The VA is not fair, and pays you at the "old rate" even tho you had to wait years for your money..that interest is lost forever until/unless the law changes. Until then, the VA will keep on delaying and denying claims, because there is financial incentive to do just that.

This information is believed to be accurate and written by a VA attorney. Hope this helps a VET. The CUE Claim John Forristal, Attorney At Law What’s A CUE Claim? CUE means “Clear and Unmistakable Error” in a final decision by either a Department of Veterans Affairs Regional Office (VARO) or by the Board of Veterans’ Appeals (BVA). A decision becomes final when either appeals have been exhausted or the time to appeal has expired. CUE claims are attractive because there is no time limit for filing the claim and if successful, the veteran will receive back pay dating back to the effective date of the original claim containing the CUE. Therefore, a successful CUE claim could result in a large pay out to the veteran. But, unfortunately, CUE claims are difficult to prove because you cannot submit new evidence and must rely on the record as it existed at the time of the decision. What Exactly Constitutes CUE? CUE is defined by the Code of Federal Regulations as: Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied. 38 CFR Section 20.1403(a) In plain English, CUE is an error that is obvious upon review and the error caused an incorrect decision. Or put another way: but for the obvious error, the decision would have been different. Importantly, the CUE claim must be based on the record and the law as it existed at the time of the decision that allegedly contained the CUE. Therefore, no new evidence is permitted in a CUE claim nor can you argue a change in the law warrants a different decision. But, like most things in VA world, there is an exception: for BVA decisions issued after July 21, 1992, the record that existed on the date of the decision includes both the record in the BVA’s possession on that date and evidence that could “reasonably be expected to be part of the record” on that date. 38 C.F.R. § 20.1403(:D(2). That means if you can show that the BVA should have had VA medical records or other adjudicative records in its possession on the date of the decision, even if those records were never sent to the BVA for review before rendering its decision, these documents are officially part of the record. This is known as “constructive notice.” Constructive notice can be a powerful ally in a CUE claim and therefore you should carefully compare the record the VA sent to the VARO or BVA and the record that the VA actually had in its possession. If you find such documents, and these documents, had they been sent to the VARO or BVA, would have resulted in a different decision, you have a good claim for CUE. You Must Specifically State the CUE: When filing a CUE claim, the veteran must plead CUE with specificity. The CUE claim must clearly and specifically set forth the “alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.” 38 CFR § 20.1404(:) (2007). This means that the veteran must present a detailed and logical argument showing: (1) the alleged CUE of fact or law; (2) the factual or legal reasons for the alleged CUE of fact or law; and (3) why the decision would have been “manifestly different but for the alleged error.” If you simply state that the previous decision contained CUE without providing exactly how the previous decision contained CUE, your CUE claim will be dismissed. Even though the VA must give pro se CUE claims (claims filed by the veteran himself without a representative) a “sympathetic reading,” it would be folly for any pro se veteran to submit a generally worded CUE claim such as: “the decision of the RO contains CUE.” You need to show the CUE and make a factual or legal argument (depending on whether the alleged CUE is based on fact or law) why the decision would have been manifestly different but for the CUE. The error might be “Clear and Unmistakable” to the veteran, but do not assume it is clear to the VA. Make a deliberate, well-reasoned, point-by-point argument that clearly demonstrates the CUE. If the CUE claim does not contain the required specific allegation(s), it will be dismissed without prejudice (meaning you can refile and try again or appeal the dismissal to the CAVC). Furthermore, the CUE claim must be in writing and signed by the moving party or representative. The motion must contain: name of the veteran; name of the moving party if different from the veteran; VA file number; date of the BVA decision that allegedly contains CUE; the specific issue (particular benefit) or issues in dispute. Failure to include the required elements in the CUE brief can result in the claim being dismissed. Don’t let that happen. Earlier Effective Date for a CUE Claim: Winning a CUE claim can have huge benefits because the veteran can obtain an earlier effective date. Any previous decision that is subsequently revised or reversed based on a CUE claim “has the same effect as if the decision had been made on the date of the prior decision.” 38 USC § 5109A. In other words, the effective date will be the date of the original denial that contained the CUE. Considering that there is no time limit for filing a CUE claim, this “reach back” to the date of the original denial can be a huge sum for the veteran. Obviously, because of the earlier effective date, a CUE claim is preferable to reopening a previously finally decided claim. If the appeal time has passed and a veteran is seeking to reopen a previously denied claim, a CUE claim can be very beneficial. Differences Between a CUE Claim and Reopening a Previous Denial: A CUE claim is not considered an attempt to reopen a previously denied claim and therefore the VA will not accept new and material evidence as part of a CUE claim. Only the record and law as it existed at the time of the decision (with sole exception of constructive notice discussed above) will be considered in a CUE claim. Furthermore, the VA does not have duty to notify and assist the veteran in developing his CUE claim, nor is the VA’s failure to adequately notify and assist in an earlier claim grounds for CUE. Likewise, the VA does not have a duty to develop the claim pursuant to 38 USCS § 5103(a) and the “benefit of the doubt” presumption under 38 USCS § 5107(B) is not given to the veteran in a CUE claim. Without any of the normal rules to assist the veteran in his claim for CUE, it is imperative to develop your argument and clearly show the CUE in the previous decision. What Cannot be CUE? The Code of Federal Regulations provides that the following situations do not constitute CUE: (d) (1) Changed diagnosis. A new medical diagnosis that ‘corrects’ an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn’t matter if the evidence on the veteran’s side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: “when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that ‘the result would have been manifestly different.’” Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA’s previous rationale for denying the claim. Some Examples of CUE Failure to Fully & Sympathetically Develop Claim Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA’s failure to “fully and sympathetically develop a veteran’s claim to its optimum.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE. For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin’s disease, the VA has a duty to adjudicate a claim for Hodgkin’s disease on the veteran’s behalf (Hodgkin’s disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin’s disease would be CUE and the effective date for the Hodgkin’s claim will date back to the date of the back injury claim. 38 CFR 3.156© Using Newly Added Service Records You can use 38 CFR 3.156© to get an earlier effective date “if the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156©. An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156© to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion). Where to File a CUE Claim: Only a final decision (the decision was not appealed and the time to appeal has expired) by a VARO or the BVA can be appealed based on CUE. If a previous decision was appealed to the US Court of Appeals for Veterans Claims (CAVC), and the CAVC decided the issue, a CUE claim is not an option. The only way to get a CUE claim before the CAVC is for the veteran to timely appeal the BVA’s denial of a CUE claim. Also, if the same issue (a request for a specific benefit) has been twice decided by the BVA, a CUE claim is not an option. If the final decision was at the VARO, then file the CUE claim at the VARO that issued the final decision that allegedly contains the CUE. A denial of the CUE claim at the VARO can be appealed to the BVA. If the final decision was at the BVA (the decision was not appealed to the CAVC and the time to appeal has expired), then file the CUE claim with the BVA. A denial of the CUE claim at the BVA can be appealed to the CAVC. When you send in the CUE claim, be sure to request a hearing, either in DC or before a traveling Board at your local VARO. That way you can address all the issues thoroughly and more importantly be able to address any issues the Board members may have about your claim. Conclusion The key to a CUE claim is a thorough review of the legal reasons and facts in the record relied upon by the VARO or BVA. If the VA misapplied the law, state exactly how it did so. You must also thoroughly review the veteran’s C-file to determine if there are any documents that support the original claim that were not reviewed by the VARO or BVA. If you find such documents, and review of the documents in the original claim would have resulted in a manifestly different outcome, then you have a good CUE claim. Remember to use the VA’s duty to fully and sympathetically develop your claim when applicable.

Vync: IMHO there is a big difference between someone who is cured and no longer needs medications, and someone who controls his symptoms with meds. If you have chronic pain, for example, which is helped by medications, you still have chronic pain and your condition has not improved. As another example, if a new "super prozac" comes out, which does a much better job releiving depression symptoms, and the VA tried to reduce, I would hire a lawyer and ask him to argue that my condition did not show material improvement, instead the treatment showed material improvement. Remember, with any medication there is always a "downside risk" in taking the med. For example, we dont know what the long term prognosis is, will we become dependent on it, will it stop working, can it build up in the liver, cause weight gain, etc. etc.

I looked into this a few years ago. When you get a college degree, at least with most colleges, it says something line: Bachelor of Science, Management Information Systems and NOT Online Degree, BS, MIS. Many colleges offer courses both online and on campus, and, since online degrees can be more profitable for the college, the colleges are unlikely to say anything bad about online degrees. For example, If you made $500 selling Chevrolets, and $5000 selling Cadillacs, are you going to say bad things about someone wanting to buy a Cadillac? Colleges know where their money comes from, so they dont bite the hand that feeds them. I have taken both online courses, and on campus courses. IMHO it depends on the student and the course as to which is better. For example, if you are disciplined to do your work when you are supposed to, etc, and if you are an experienced student, comfortable with computers, especially if it is a long way to campus, you should look into online courses. However, if networking with your peers is an important part of your degree, such as a degree in marketing, or you are not comfortable with computers and have never been online, or if you really crave that student teacher relationship, then you should probably drive on campus.

Hawk I agree with you about the "new" Vets not deserving a higher priority than Vietnam Vets. This is just a method the VA uses to divide Veterans, and pit Veteran against Veteran, so the Va can easily beat us. It is downright dirty pool. I also agree with Berta..to expidite the claim, try doing what she suggested. IMHO VA stuff moves very, very very slowly..on purpose. The VA gets an interest free loan from Veterans. There is plenty of incentive for the VA to delay the claim, and absolutely no incentive for them to hurry it up.

Blanco I will be so bold as to make a prediction, based on your posts: Because you have a good rapport with your doctors, if they write you a good IMO (IME is better), I predict you will win your claim if you persist in the necessary appeals. You obviously have a current/chronic disability with a GAF of 40-45, that and a good nexis letter by your docs will win for you, tho not necessarily on the first get go at the RO level. It could well take a DRO, BVA or maybe even CAVC decision, but eventually you should win. It is pretty hard for the VA to keep beating a good nexus...tho they sure tried with me for 7 years.

I agree with Larry. You may find a "Veteran Friendly" Psych doc at your VA..of course, you may also need to get a private IME/IMO to establish your Nexus.

I recommend what Katrina Eagle, a lawyer, wrote about refuting reductions. The link is here, but you will need to scroll down. http://knol.google.com/k/jim-strickland/a-...4hm0dxfnnzs/11# Just in case the link does not work, I will post some of it here: Reductions and Severances How To Challenge A VA Proposal to Reduce or Take Away A Veteran’s Monthly Compensation Katrina J. Eagle, Attorney at Law http://www.wildhaberlaw.com/ It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or “obtain and, or maintain gainful employment” because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be “permanent and total”). Thus, the VA orders re examinations in order to assess the current severity of the veteran’s service-connected disability. Here are the key VA Rules and Regulations relevant to this issue: a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), © (2007). b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran’s monthly disability payments. See 38 CFR 3.655© (2007). c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran’s disability. d. But, the VA should not schedule a reexams if any of the following situations exist: The disability is static; Symptoms have persisted w/o material improvement for 5 years or more; A disability from disease is permanent and not likely to improve; The veteran is 55 y.o. or more; or The rating assigned is the minimum rating or a reduction in a disability rating would not affect total combined rating. See 38 CFR § 3.327(:D(2) (2007). e. Any rating evaluation that has “stabilized”, i.e., that it has “continued for a long period of time (5 yrs or more) at the same level” may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),© (2007). Note: “Sustained improvement” must be based on all evidence of record; i.e., a change in rating cannot be based on single examination “in isolation of rest of the record”. So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA’s “proposal to reduce” the veteran’s disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision. The Process by Which the VA Will Attempt to Reduce a Veteran’s Service-Connected Disability Rating: VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103(:)(2), 3.105(e) (2007). VA must provide the veteran 60 days from the date of the notice by which to “submit evidence for purpose of showing that adverse action should not be taken.” BUT, VA need not give notice if the actual amount of compensation paid is not reduced as a result of proposed rating reduction. In same notice, VA must inform veteran about right to a Predetermination Hearing. If the veteran wants one, he or she must request it within 30 days of notice. See 38 CFR § 3.105(i) (2007). Predetermination hearing must be conducted by VA personnel NOT involved in initial proposed rating reduction. Whenever possible, request a predetermination hearing because it will delay the VA’s implementation of the reduction by some 2-3 months, thereby buying the veteran some time to obtain evidence to support his opposition to the proposed reduction. Under the auspices of VA’s duty to assist, it must advise the veteran about the types of evidence – medical and nonmedical – that the veteran should submit to avoid a reduction in the disability rating. If the VA failed to properly notify the veteran, write a letter to VARO and ask for clarification and specificity. If the veteran fails to respond and, or submit evidence within 60 days, then the VA issues final rating decision with notice that benefits will be reduced in 60 days. Ways to challenge a VA proposal to reduce a veteran’s disability rating: a) Review the most recent VA medical evaluation – was it “full and complete”? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a). B) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated” AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007). c) Review the VA’s historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951(B) (2007). Such a continuous rating is often referred to as a “protected rating.” This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE. Beware of the misleading language in the VA regulation! The VA can reduce a “protected rating”, just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more. Ways to challenge a VA proposal to reduce a veteran’s TOTAL disability evaluation: a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, “material improvement” must also be shown “under the ordinary conditions of life, i.e., while working or actively seeking work.” So, VA rationale must include review and comparison of the disability’s past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code’s Schedule of Ratings. b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in “substantially gainful employment” because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka “TDIU” or “IU”). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless “clear and convincing evidence” establishes that the veteran is capable of “actual employability.” See 38 CFR § 3.343© (2007). Ways to challenge a VA proposal to reduce a veteran’s UNPROTECTED disability rating: Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka “unprotected cases) are subject to several VA rules and regs with which VA must comply: a. Any proposed reduction must be based upon review of entire history of veteran’s disability; b. The VA must determine whether there has been an actual change in the disability; c. Any improvement must include the veteran’s ability to function under the ordinary conditions of life and work; and, d. Exam reports reflecting any such change must be based on thorough examinations. See 38 CFR §§ 4.1, 4.2, 4.13 (2007). Consider these arguments when challenging a reduction in an unprotected case: a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based. b. The VA must specify the medical evidence relied upon for proof of sustained improvement. c. The VA must explain how it determined with reasonable certainty that improvement of the veteran’s medical condition(s) will be maintained under the ordinary conditions of life. d. Thus, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improved since the time it was either granted or continued. See Manual M21-1MR, Part III, subpart iv, 8.D.12(B) 38 CFR §§ 4.1, 4.2, 4.13 (2007). Regarding the VA’s severance of service-connected compensation, these are the two common circumstances: a) Due to Fraud by Claimant – B) The process and the due process protections are identical to when VA proposes a disability rating reduction. c) Service-connected and DIC benefits (aka “widow benefits") are protected from severance after 10 years UNLESS fraud or lack of required length or character of service is discovered. d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection. e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It’s worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered. f)Also, the VA need not prove C&UE in cases where service connection was “clearly illegal.” Katrina’s tips for veterans facing a VA proposal to reduce a service-connected disability rating: 1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic! 2. Review VA proposals for findings that amount to “unsubstantiated medical conclusions” 3. Whenever possible, get a medical opinion from a treating physician that will counter a VA medical evaluation 4. Emphasize fact that veteran’s disability has not improved such that employment capabilities have improved; thus, reduction is improper.

Blanco Others may chime in, but it may not be a bad idea to go ahead and go with a "new claim", because, you can still go for an EED, possibly by "Cue"ing the 1986 decision, maybe even similar to what Josephine mentioned, AFTER You get SC'd. Since you ARE on meds, at least one or more docs have diagnosed you with a mental disorder because they dont hand out those meds out to children when they run out of gumballs. If you have been on meds some time, and are still on them, then you meet the current condition and chronicity part. (They dont pay you for a mental problem if you get better and no longer need meds.) I do think it is important to know if you were on meds back in 1986/2000. I dont think the VA can BS the judge into beleiving you have a 'personality disorder' but the doc is treating you for schizophrenia with meds for that. Remember there is a difference between SYMPTOMS of a disease and a diagnosis. For example: Your leg is blown off in Vietnam. There is NO doc around to make a docs diagnosis of a missing leg. However, you do have SYMPTOMS..you need to use a wheel chair, you cant walk on 2 legs, you cant run, etc, etc. So, you get back stateside, and your doc "connects the dots"...Gee it looks like that roadside bomb was most likely the cause of your leg that is missing. So, you could obviously get benefits back to the event that blew off your leg. (Remember, tho, you would still have to apply for benefits for that missing leg. No application for benefits..no money.) In a similar way, if a current doc says you are on.....for schizophrenia, and notes that you have been on that med since 1986, then you can probably demonstrate chronicity as well as a current disability. This doc doesnt want his license taken away, so he put you on meds not because you had a personality disorder, but because he felt you were schizo. You dont get meds for personality disorders..the docs look in the DSM 4.(they probably have it memorized..we have to look it up) Then the raters have a schedule of rating criteria. Someone else can post the schedule for rating mental disorders. I would look at those and see how many you have, and which one you think describes you. They go from 0% 30% 70% and 100%. Most of the time your doc will assign you a Global Assessment of Functioning Score (GAF). Look on your medical notes and see what your GAF score is. The GAF numbers sometimes vary year by year or even month by month but they are a good guide as to how the doc thinks you are. If your GAF score is below 60, then your doc thinks you have some serious issues. There is a Veterans benefits attorney who used to post here that said something like if your GAF is below 50, then he could probably get you 70% SC (assuming, of course, it is service connected). If your GAF is like 80 or above, then you are going to have trouble getting much compensation, if any at all, UNLESS you can get another doc to offer different GAF scores.

Blanco I agree with you in that there is some crazy stuff going on here. There is a big difference between service connection denied and service connected at 0% even tho they pay the same amount..zip...zilch, nada. If your are service connected at zero percent, you can always ask for an increase if your condition worsens. However, if SC is denied, then an "increase" does not apply. Your one year appeal period of the 1986 has long since expired, so you will have to "CUE" the claim in order to get RETROACTIVE BENEFITS to 1986. If you reopened your claim in 2000 due to 'new and material evidence' then you need to state what that evidence was. For example, if you saw a doctor prior to year 2000 who stated in his medical report that you had a psychiatric disorder, that is far different than a 'personality disorder'. Usually, docs dont say 'psychiatric disorder', they say you are depressed, bipolar, schizophrenic, etc...all of those are 'psychiatric disorders'. Are you on, or have you ever been on antidepressant meds? (Zoloft, Wellbutrin, Lithium, etc). If you are/have been on those meds, the doc wont prescribe them unless he has made a diagnosis, usually for a mental disorder. The doctor is not trying to "treat" your personality..that is who you are. If you have never been on any doctor perscribed drugs, I would say you are unlikely to get any benefits for a mental disorder (unless maybe you had electro shock therapy, and they dont usually do that until they have tried pills first). However, if you have been on antidepressants or other mental disorder meds, or have been hospitalized (mental hospital) with things like "suicidal ideations", then you are much more likely to be awarded benefits. To get benefits, you have to have a current condition or disability, as well as a link (nexus) to military service. I think I have heard before of Vets who were discharged with a "personality disorder" rather than a mental illness in order to not have to pay benefits. To fix this, you would need ANOTHER Doctor (VA or not VA) to state in his medical report 1)that you do have a mental condition, such as depression and 2)that it was "at least as likely as not" due to military service. If a Doc Did state this in his medical report, I think that would be "new and material evidence" to open your case. Finally, of course, you should review your medical records both in service and out of service. If a doc did prescribe pills for you, or if he did diagnose you with MDD or another mental disorder, then you can "CUE" them...that they failed to consider Doctor.....(Jones) evidence. The VA is required to consider ALL evidence, so if they failed to consider a doctors report then that is a basis for CUE.

Something smells like rotting fish at Roanoke. About 15 months ago my claim was "farmed out" to Roanoke. My question is, "Why?" (At that time, I did not know that Roanoke was so far behind in claims processing that the building was about to collapse...what does the VA do about it? Well, they send them more claims, that's what) Why would my claim be "farmed out" to a RO that is already that far behind? If this "farming out" stuff is done to speed up claims, then why put my claim even further to the back of the line. MORE ROTTING FISH: Roanoke "developed"...and then lost my claim. All the development work on my claim that was done in Roanoke is GONE with the wind. I communicated with, and saved emails with a Roanoke employee. They sent my claim back to Cleveland for a decision. Recently, a copy of my c file revealed NOT ONE PAGE of documentation from Roanoke..all of it is gone. It gets even fishier: Cleveland RO manager, shortly after the "October Shredding Incident" gets promoted to VACO. She was the one responsible for sending my claim to Roanoke.

I agree with Vync. The VA wants us to lower our expections throughout the VA: Claims done on time? Lower your expectiations..count on it taking 10 years or more. Medical Care: Whenever you visit the VA, go to a private doctor to confirm that the VA doc didnt infect you, for example, with Hep B by using dirty equipment for a colonoscopy. If you go to the VA to get an H1N1 vaccine, you had better make an appointment with your private doc to make sure they used a clean needle and didnt infect you with whatever the last guy had. If you go to most VA medical centers, expect to be discharged sicker than when you went in. If you go to a VA pharmacy, expect that they wont give you pain pills because lots of medication "disappears" from VA's pharmacy inventory. If you apply for GI bill education benefits, lower your expectations in line with what the Va will produce...many months of waits. However, if you are a QTC contractor, or VA executive, you can expect full payments on time, every time plus bonuses for "good work"....that is, as long as you follow Va guidelines of stating that the Veteran is sick, but it wasnt caused by military service.

James.. My experience has been somewhat similar to Cowgirl's. Help me make sure I understand what u mentioned in an earlier post. Ex. Veteran is SC for hearing loss since 2002. In 2007, Veteran seeks increase for arthritis of the knee. The knee was fractured during military service, and has become arthritic, which often happens with broken bones. Veteran gets a new VCAA letter for arthritis in 2007, this VCAA letter mentions that I am SC for hearing loss. Does "mentioning that I am SC for hearing loss" in the VCAA letter mean that they are trying to do a reduction if they can? I have not been scheduled for a reduction exam, but if I attend a C and P exam for arthritis, does that mean I am going to have to start all over and AGAIN prove my hearing loss service connection? If I have a C and P exam for the arthritic condition, is my hearing loss awarded in 2002 "at risk", even tho it was documented by the audiologist? By the way, I am over 55. Maybe I sound paranoid, but for as hard as I fought for my benefits, I would almost certainly go "off the deep end" if my benefits were reduced. The VA likes those words, "usually"...Does that mean they wont call for a C and P exam when I am over 55..that is, how do I know if I am an "unusual case" or not?

Berta.. Agreed. Dont forget that one Veterans evidence was placed in the shredder bin by a "careless employee" in this report. If one claim was shredded , more will surely follow. Shredding is alive and well and "controls that were put in place" to prevent shredding are ineffective. Further, if it happens in one RO, then it is happening at others. My question is, who is hiring, "careless employees"? Is this "careless employee" a cousin or friend of a RO manager/executive? Does RO management not have any controls in place to discipline or terminate "careless employees"? This is not a employee mistake..this is management error blamed on one employee. That is a fact.

They beat me down, too. Lost my home while waiting for VA benefits (It took em 7 years, even with a valid "nexis" statement) I hung in there...almost took my own life, but got help and hung in there. I eventually won. Now I am appealing for the real effective date, 7 years ago. When I get it, I will be able to buy another house. Listen to the Captain.. NEVER GIVE UP.

Congratulations. However, dont go spending your money yet. EVEN when the BVA does a "complete grant", the Regional office decides what that means. In my case, the RO decided 'complete grant' meant 0 percent. I checked, and it is illegal for the RO to do that, that is there is case law that says that a zero percent rating can hardly be considered a grant of benefits. Your RO interprets laws however they want and nobody watches over them. They have "interpreted" fast letter 08-41 to mean that it is perfectly legal for the Regional office to illegally shred Veterans evidence as long as it was not in between April 07 -Oct 08.

Here is what you do. File a NOD and put the ball in their court. This should only take a couple hours. Then, go on with your life, play golf, make love to your wife, play with your kids, go fishing, tho not necessarily in that order. Count on all the money gone. Then, you will have something to look forward to. You may get lucky and get it upon DRO review..in as little as 6 months or sometimes less. It may not even have to go to the BVA. I have had good luck with DRO REVIEWS (DRO Hearings take much, much longer). You may even luck out and get it with a Motion for Reconsideration.

There is one thing in the VBA that does not suck....The vacuum cleaner..it blows.

I say never mind the buildings..let em fall down. It is the Veterans lives that I am concerned about. These arent C files..these are people's lives being messed up with being led "ring around the rosie" by the VA, while many of these Veterans are loosing their homes and famalies.

Pete Truly great leaders, such as yourself, are often humble and care more about the people they are sworn to protect than they do themselves. Your apology, tho unnecessary, is an example of such humility.

My claim was dropped in 2006..no decision, no denial, no nothing. I never was able to "get it going again" even tho I pointed out the mistake. When I finaly got a decision that addressed the issue, they said it was 'moot'. However, a year of retro may be " moot' to the Va, but it is not "moot" to me.