100%

[sbrewer]

Finally got a knew computer so everything is not going black at the bottom. I wrote in last week about my husband getting 100% and what was needed for the ID cards and so forth. We have now got all that taken care of, waiting on forms for me to apply for CHAMPVA, but I think we have everything else. Now, here's my question....

He recieved 70% but paid at the 100%PTIU for mental, however he was denied for his heart. Should he appeal that decision and if so what will happen. Can they take back the 100%PTIU or is it safe?

Thanks,

sbrewer

[Vike17]

sbrewer,

"Can they take back the 100%PTIU or is it safe?"

No, the VA cannot "take back" the 100%IU P&T on a DRO review or appeal, unless there was a CUE involved.

Vike 17

[Jay Johnson]

"Take back" is a tricky phrase.....can they review the decision and change it, without CUE, as per the regs? No. Have they done it anyway? Heck yeah. They did it to my wife when we simply changed regions. The decision to drop her from 100% P&T with A&A (just received several months before moving mind you) to 50%, was made because, and I quote, "the VA does not grant A&A for a person's willingness to hurt themselves (why they took away A&A)" and "The evidence does not warrant a 100% rating". They based this on a note saying she was able to handle her own finances (to get her out of the god awful fiduciary program).

Eventually, we won the money back (all but the A&A, but we got homebound), but only because I fought them tooth and nail and got in touch with the director of the RO in Seattle.

So, P&T is safe ONLY if you give them absolutely no reason to look at your file...once you open it up, you are subject to the rater's discretion, regardless of the regs saying they cannot do so.

Filing appeals for separate disorders (once already 100%) is a judgment call...personally, I would leave well enough alone. The regs are certainly on your side in this matter, but that doesn't mean the RO cannot put you on the defensive and force you to win the rating back on appeals.

[vaf]

My thought is if the condition, such as a cardiac condition, has the capacity to eventually, directly or indirectly, cause the veteran's death, I would fight the decision to deny service connection for that condition.

I'm thinking about DIC for the surviving spouse.

Just my opinion.

[Jay Johnson]

Yeah, DIC is a big deal, especially with a heart condition. On the plus side, I don't think an RO likes to question itself....I think my wife's case is more of a "my RO is better than your RO" type of case. In all likelihood, your spouse's TDIU P&T should be fine, just be sure to get copies of the exam (for the heart issue) and don't offer up any personal details that do not pertain to the heart issue (unless asked).

Again, the VA regs are on your side here, but there is NO penalty if an RO does not follow regulations, so they tend to break them from time to time. In the end, you'd likely win back anything they tried to reduce anyway, but it can make life hell in the meantime.

[sixthscents]

Yeah, Vike sorry but I have seen it done too. Nope they shouldn't be able to by the regs, but I've seen it happen. Personally I would open the box though, simply because of the DIC issue.

[Ricky]

I have to agree with all below. A heart condition that should be SC'ed should be fought. If the veteran passes from a heart related disease it would be exteremly hard to SC it for DIC purposes at that point. If this was a recent award then I think you should be ok (just my opinion). Was it a solid SC for the mental issue or did you have to appeal in order to obtain SC?

Six good to see you again.

[Vike17]

What I meant by my first post was if the veteran is apealing a decision and the DRO is reviewing the case simply with the evidence in front of him/her that was used to reach the prior decision, then he/she cannot reduce a rating that is less advantageous to the veteran.

See M21-1MR, Part 1, Chapter 5, Section C, §12(e).

If a veteran is appealing a decision and has a another C&P exam which shows improvment in their service-connected condition, then the VA has the right to reduce the previuos award due to the new medical evidence showing improvment.

Vike 17

[sbrewer]

Thanks everyone,

I was looking at this from a DIC standpoint as well. He actualy worked at the VA hospital, and a shrink there said, during the "fitness for duty exam", that he was not able to work at all from his mental condition, which at the time was sc'ed 50%. So, hopefully that's locked in. We did however, at the same time that he put in for an increase for the mental, he put in for heart condition. The heart condition was denied and the mental increase from 50 to 70 but got 100 PTIU.

Hope this clarifies what I was trying to say.

Thanks,

sbrewer

[Jay Johnson]

Well, gather all the information you can (on the heart condition) and file an appeal for it. As vike said, it's even harder for them to mess with the PTSD rating if it's attached to the current denial for the heart condition because the DRO is only supposed to consider the issue being appealed.

At least you're in a position to weather a long appeals process being that your spouse is already 100%.