C&p Evaluation For Appeal

[hp1030]

Sir's And Madams:

I will be evaluated this next Friday by C&P in the continuation of my appeal.This after they reduced my disability benefits(2004-2005) from 50% to 10% disabling after over 10 years of this condition been established without any improvement .

The evaluating doctor will be the same doctor that reduced my benefits without even looking at my medical record, as per copy of the evaluation for skin disorders that reduced my benefits.

I have lesions on my face, back, trunk,upper and lower extremities and buttocks, but he wrote that the extent of involvement was only 10%. Should I express my concern to him about this???

Some weeks after, I saw this doctor for the first time as a Dermatologist in consult from my PCC(not a "C&P evaluator") and he wanted to take me to the local Medical School for a conference in regards to my skin condition...???!!! Very interesting case, he said.

I have plenty information from my VA medical records of treatment consult, and procedures for my skin disease and also Independent Medical Opinions, should I bring those to be included with the C&P record?

This taking into consideration that my record was not taken in account at all for the last inaccurate decision.

Any advice or previous experience will be appreciated.

Thanks in Advance;

HP

[Former Member]

Are these IMos that meet the VA's criteria posted here?

Have they ever been seen by the VA before?

I would bring them to the C & P- and also submit copies of them to the VARO right away.

[hp1030]

Berta:

Yes, I understand they all meet the criteria. They even state that they were performed in accordance to the "Physicians guide for disabilities"

Yes, they might have been seen by VA before. I have no idea or way of telling. But i am sure i can get at least one new IMO before Friday, these are all my long time attending physicians.

Most of the info comes from the VA medical record.

Thanks for your time and dedication.

HP

PS: Is this SOP... to reduce benefits like this???After all this time with the condition???is ok for the doctor to be judge and part???

[Jay Johnson]

The VA randomly reduces people despite not having the proper regs to back it up. Honestly, I feel it's simply a cat and mouse game to see if the veteran will fight for the money; if not they win. In your case, it does not sound as if the VA doc's opinion met the "New and material evidence" requirement needed to reopen or readjudicate a claim. In other words, a single doc cannot simply review your file and lead to a reduction. However, that doc could have reviewed the file and reopened the case citing a prior mistake, but it would take more than that single opinion to overturn the totallity of what appears to be a fairly significant medical file on your part.

So, either you've gotten better or you haven't; if not, then no one doctor can overturn the opinions of several others unless said doctor has far more knowledge of the disease (specialist) and the prior doctors didn't.

Basically, a claim is like a civil law suite.....you have to prove your side is more right then theirs and they cannot find in favor of 10% of the documentation over the advice of the other 90%. This is where reasonable doubt comes into play.

G'luck,

Jason

[Vike17]

"The VA randomly reduces people despite not having the proper regs to back it up. Honestly, I feel it's simply a cat and mouse game to see if the veteran will fight for the money; if not they win"

Nonsense! The VA isn't randomly reducing veterans just to be doing it. Hell, they have so much work to do now, they aren't going to go out on fishing expeditions just to create more of a workload!

When a veteran comes up for an review exam, it was either entered into the system way back when the prior rating was issued or the RO may have become aware of improvement in a veteran's condition either because the veteran was admitted to a VAMC and somehow their service-connected disability was brought to light, or the veteran himself submitt medical evidence of improvement (sounds far fetched but has happened before).

hp,

I'm not sure if any IMO's will help your situation. You just need to concentrate in getting the medical evidence to the RO of your disability not improving since your last rating decision.

Claims for increases/re-evaluation normally do not require a C-file to be present. The C&P examiner and the RVSR just needs to see treatment records from the last C&P exam/rating decision. You should bring any treatment records since your last exam/rating with you to the C&P exam AND then send them seperately to the RO to insure they receive them. Many times a veteran will bring treatment records to the exam and will rely on the doctor to forward them to the RO along with the exam write-up. DO NOT count on this to happen, especially if this is the same examiner you had last time!

Vike 17

[hp1030]

Vike 17:

Nothing random about my reduction, I agree. My Service connected disability was brought to light when we requested IU(2004). I received a C&P evaluation shortly after and the benefit was reduced; On a single examination, with evidence from my private doctors and VA doctors that my condition had not improved and continue to worsen. This is not correct. right Vike???

I contend that they did not follow procedure and never complied with 38 C.F.R. Section 3.344. We have appealed, that bring up this next C&P eval.Friday.Same doctor.(Juror and part???) We have submitted all available evidence , records, biopsies...etc,etc to the RO. Should we send again now? My prior C&P was done in 1994..!I have copies.

Jay:

The doctor did not meet ANY requirement, But they still went ahead and reduced my benefit from 50% to 10 % after over 10 year without improvement and the condition worsening. I have many medical opinions stating so. What else do you think I might need to do?

What else can I Do before Friday??

I thank you guys.

[Jay Johnson]

Nonsense! The VA isn't randomly reducing veterans just to be doing it. Hell, they have so much work to do now, they aren't going to go out on fishing expeditions just to create more of a workload!

When a veteran comes up for an review exam, it was either entered into the system way back when the prior rating was issued or the RO may have become aware of improvement in a veteran's condition either because the veteran was admitted to a VAMC and somehow their service-connected disability was brought to light, or the veteran himself submitt medical evidence of improvement (sounds far fetched but has happened before).

Vike 17

Believe what you want, but I've seen hundreds of cases reduced for completely inexplicable reasons. Whether or not it's just RO's being ignorant to regulations or intentional I really don't know; but the VA does it and does it often. Just as the VA will push one claim through quite easily while the exact same type of claim with the exact same type of evidence is denied or low-balled. To me, it's much like the IRS....most of the time your taxes are hassle free, but every once in awhile they pull your file and make your life a living hell, except in the VA's case they do so in the hopes that the veteran will not be knowledgeable enough to properly fight the claim (which many aren't).

My wife's claim of 100% PTSD with A&A AND P&T was reduced for no other reason then us switching regions (east coast to west coast). It took a year, a few CUEs and many calls to the director in order to "fix" it to the way it was...to top it off her 100% with A& and P&T was decided just 5 months before moving, so don't give me the "new evidence" stuff. The file was reviewed when it was shipped, they saw an opportunity to low-ball it and did so....had I not fought on her behalf she would be at 70% right now.

But, believe as you will.....

- Jason

[Jay Johnson]

Jay:

The doctor did not meet ANY requirement, But they still went ahead and reduced my benefit from 50% to 10 % after over 10 year without improvement and the condition worsening. I have many medical opinions stating so. What else do you think I might need to do?

What else can I Do before Friday??

I thank you guys.

Was the contrary opinion(s) done around the time of the C&P exam? If so, the totallity of the medical evidence should clearly be in your favor and you could appeal on that grounds and, perhaps, CUE it at the same time for reasonable doubt not being used. However, if the C&P was new information and all the RO had to go on (IE - they didn't have any recent IMOs), then you would have to take only the appeals route while adding as much contrary evidence as you can. In the end, you should win, provided you get the right documentation....the VA can't dismiss more qualified doctor's based on less qualified opinions (they do, but they'll lose in the end if you present your case properly).

[hp1030]

Jay:

I have appealed.

This C&P evaluation(next Friday), I guess was ordered by the RO, before deciding if they send the appeal to the board(?).Problem is, it will be the same evaluating doctor who reduced the benefit in the first place.

Yes, all the opinions were done close to the C&P exam.

The RO had information with contrary evidence against the C&P evaluation at his disposal.They allegedly did a "di novo" review!?.

They based the reduction on the % of skin involvement, the C&P doctor said it was 10 percent,with a progressive condition involving face, trunk, upper and lower extremities and the buttocks.????

Please describe "right documentation" and what a "proper case" is if you will.

Because there is nothing more I want right now, with you guys help;

than to win.

Thanks to all in advance.

[Jay Johnson]

Jay:

I have appealed.

This C&P evaluation(next Friday), I guess was ordered by the RO, before deciding if they send the appeal to the board(?).Problem is, it will be the same evaluating doctor who reduced the benefit in the first place.

Yes, all the opinions were done close to the C&P exam.

The RO had information with contrary evidence against the C&P evaluation at his disposal.They allegedly did a "di novo" review!?.

They based the reduction on the % of skin involvement, the C&P doctor said it was 10 percent,with a progressive condition involving face, trunk, upper and lower extremities and the buttocks.????

Please describe "right documentation" and what a "proper case" is if you will.

Because there is nothing more I want right now, with you guys help;

than to win.

Thanks to all in advance.

If the RO is setting you up with a C&P AFTER making a decision to lower you than they are not very sure of their rating in my opinion. They did the same thing to my wife when they tried to lower her....they basically sent us a letter saying she had been lowered, but asked for a C&P at the same time, which is odd. In VA terms, it is more difficult on them to argue a claim down, so starting you off on a lower level gives them the upper ground. Basically, in order to lower a claim the VA is "supposed" to have new, material evidence that outweighs prior evidence and a mere review (short of CUE) does not meet that standard, but they do it anyway.

Were you seeing a regular doctor for your skin problem during this entire period? The "right documentation" would be any and all information about your disbaility that is as recent as possible.

Also, find out what this C&P doctor's credentials are....does he specialize in skin disorders? Is he an MD, PA, NP, etc? What is your primary doctor's credentials? Is he a specialist? If not, can you see one ASAP?

The VA does this stuff all the time.. they see a case that looks iffy and they get some doctor to go over the medical records as a basis for lowering the case (without even seeing the veteran). This can work if the vet has not been seeing a regular doctor and has no recent medical evidence to back up a claim, but if you have recent medical opinions this doctor's opinion will mean very little.

So, don't panic or anything and get as much medical evidence as you can and see where it goes. You may even want to consider a CUE at this point because lowering based on a single doctor's review of your case seems like a violation of the regs (unless that doctor could prove CUE himself).

[hp1030]

Jay:

I have to see a "regular" doctor since my condition continues to worsen. All this information has been provided to VA.

Is there a criteria or a format to prepare a CUE claim???

Should I wait for the resolution of this matter?? recently I called the regional office and they said I only had my appeal on file no more claims, and this is not true.Do they stop all claim to go ahead with the appeal??

Thanks in advance to all.

HP

[Former Member]

This isn't a scenario for a CUE claim at all.

CUE info can be found here under the search feature.

It appears to me that they have not considered all of your medical evidence-

I dont know what type of skin disorder you have but I suugest you go to the BVA web site and search it and see how they determined the ratings for it-

then again it should be in the proposed reduction paperwork-

Your medical evidence has to support that you still warrant the 50% based on the Schedule of Ratings for your skin disability.

[Jay Johnson]

This most certainly could be a CUE claim, as the VA may have violated both reg 3.102 and 3.104, but that depends, in part, on whether or not you furnished them with "new and material evidence", which would allow them to reopen and review the case (the VA cannot reopen a case based on old information unless it determines CUE on itself, even though they do all the time).

Even if you did prompt the review with new medical evidence, you may still have a CUE claim with reasonable doubt (3.102), but that is a very grey area to be in. Basically, if all of your prior information says you are 50% and all of your new information says you are worse than before, one doctor's opinion cannot meet the reasonable doubt criteria.

However, if, as berta says, they made a scheduling error in the first place (IE - your disorder did not warrant a 50%), then you have a very uphill battle and no CUE would apply. But, I'm doubting this is the case, though it's possible.

To me, this is another great reason why vets should NEVER use VA health care. I don't care what they say about the medical part being separate from the compensation part, once you add new medical evidence to your Cfile, they can review you whenever they see fit. If you go to a civilian they are not privy to that "new and material evidence".

[hp1030]

Berta:

I agree they have not considered even half of the information provided. If we went by the Schedule of Ratings for my skin disability I would have to be rated at 60%. My private doctors states that the skin involvement is over 60% with constant corticosteroids treatment according to this info, It should be rated at 60% disabling. Correct?

My main diagnosis is Mycosis Fungoides a type of T cell lymphoma,but VA call's it Dermatitis.????

7806 Dermatitis or eczema.

More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period 60%

20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period 30%

So I do not think there was a scheduling error. Just a contrary to law rating reduction.

Thanks in advance.

[Jay Johnson]

Have your private doctor write up a medical history with a current diagnosis and future prognosis in great detail. With that, it should be an open and shut case. Also, request to use your civilian doctor as your C&P instead of the one they assigned, or, at least, get them to assign a different MD because this one is obviously using bias in his/her decision making process.

Also, I think you have grounds for a CUE here based on what you've said. The VA cannot simply send your C-file to any random doctor to reevaluate it without new and material evidence (3.156). Also, under 3.105 it clearly states that, "(:P 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.". I had the same issues with my wife's case in which one RO tried to supersede another RO without ANY new evidence to the contrary.

I feel this is a tactic by the VA to get you into a C&P in order to take a "legal" look into a particular case.....by giving some lame excuse (in your case a "review), they get you into a C&P before your C&P date and once you take that C&P you have provided them with "new and material evidence" in which they can now justifiably alter your claim. But, based on solely that MD's "review" they cannot lower your compensation...it stands in stark contrast to the regs I listed (and several others).

Hang in there; you'll be fine.

[hp1030]

Thank you guys:

I think I am ready now for this C&P eval.

I will bring progress notes, psych progress notes an IMO and the last evaluation by my private dermatologist.

I will also bring the last blotched C&P exam by the dermatologist who reduced my benefits (soon to retire!!!) and copies of previous C&P exams and determinations which granted SC and 50% disability rating since 1994.

I will hand deliver this info to the RO with a statement of the case. I do not think any of this info was ever considered appropriately.

Berta,,,, Jay,,,,Vike,,, any new advice?

Am I on thwe righ path?????

Thank you so much.

[Former Member]

Isn;t it illegal to have the same doctor do it again?

Not sure --Vike would know-

I hope the C & P doctor is recetive to your information-

especially the IMO- at least the doctor will know you have an IMO-

And copies of all that you have should also be sent to the VA - Do you mean the 21-4138 form-

Statement in SUpport of Claim---

available at the VA web site-

Always a good cover letter to use when submitting additional evidence.

(I always forget to use it- my vet reps never used one for 3 years re my claim evidence.)