Need Help With Increase And C&p Exam

[Bound4heaven]

Greetings,

I contacted my local RO over a year ago to ask if I could get a letter stating that I am T&P (I am currently rated at 90%IU with T&P with Chapter 35 benefits and no future exams) The ro informed my that I was not T&P (I was but was unaware at that time) and I would have to apply for increase. I do file for increase and I was sent to my 5th C&P exam. The examiner was a N.P and extremely rude to me. She asked me questions that had nothing to do with my exam (Why do my wife and I adopt special needs children, and was I drinking I havn't drank in over 10 years) I informed her that was not while I was there. I have many bi-lateral foot issues and she asked me to stand on my toes and I informed her I could not and she became furious at me telling me I was combatant and she would make sure that was known. I knew after that exam last July it ewas not going to go well.

I got a copy of the C&P exam from the mnedical records and I was floored with the distorations and lies that were in the exam. She said in the final report that I was missed dignosed and my disabilities were not as severe as my other doctors in the VA. She went on to say that I was able to stand on my toes so by doing that I had no foot problems. I files 7 complaints with the patients advocate at the VA Medical Center. I even met the pwrson in charge of the C&P exams. I sent all information to the RO. I also receive SSD. The question I have is because of her comments on the C&P reports will I loose the increase? However the big issue I have is will they reduce my current benefits I now receive?

I have one last issue. With this increase I brought into play secondary disabilities from side effects I now endure from the 21 different medications I now take. I had a medication evulation done outside the VA and all the current side effects I thought were due to my disabilities were because of my meds. I submitted this report to the RO. I also had a IME done by Dr. Bash , however he is not done with it as of yet. My American Leigon cso wants the RO to make a decison asap, and use the IME for an appeal if necessary. Can anyone give me some advice? God bless you all.

[Guest Berta]

Geez- this is awful-and this crap is starting to happen to too many vets at C & Ps- did you get any follow up at all from the person in charge of the C & P exams? or the PT Advocate? re: your complaints?

The VA cannot reduce you without some clear cut evidence of improvement-

do you get SSA for the same service connected conditions?

I think Dr. Bash is great and hope his opinion will overcome this lousy C & P you got.

You could submit a copy of it as soon as you get it- or use it to support a Notice of Disagreement if they do not give you a good decision.

By getting that C & P right from the git go- you see already what you might have to fight about-

Welcome aboard and by the way- do you feel comfortable telling us

what the C & P was for and what your SC disability is?

I am a little confused- you were already declared P & T but then they wanted to give you another C & P ?

Is Dr. Bash aware of the C & P results?

[Bound4heaven]

Thank you for your response.

I am currently rated *40% for bi-lateral foot conditions (Flat Feet, Planter Fasiilis, ect)

*50% back condition (Osteoporosis, lumbar strain, degenerative disc desease)

*10 % Tinnitus

*20% Loss of motion in left arm

*20% Varicose Veins 20% Bi-lateral

*20 % Hearing loss

*10% loss on motion left finger

Yes After I filed my complaints with the RO and the Patients Advocates, local senators I received a call from the main person in charge of C&P. I was blessed I had a VA Med appt the same day so after my appt she sat down with me and we went through the entire issues. She was only concerned about the C&P examiners response concerning why we adopt specail needs children, and her telling me I appeared to have had a stroke which was out of her medical knowledge to give such a statement. She also informed me that they would be making a full investigation and would displine the C&P provider. My cso called me after that and told me that,"There were several complaints filed against this C&P examinier. I was also informed that if I did not like the results of the decision from the Ro that I could request an appeal. (All Veterans have that right) so she wasn't telling me anything new.

Yes Dr. Bash is aware of this issue he has the entire C&P exam along with 4 of my doctors with dignosis and prognosis which is against everything the C&P examiner said. Yes I am rated at 90% IU with T&P paid at the 100% rate. When I called the RO last December I knew I was 100%IU, but I did not know I was also rated at T&P due to I received chapter 35 benefits, and no future exam on my award letter. The guy at the Milwaukee RO had no clue to waht he was talking about when he told me I had to apply for an increase.

So when I applied for an increase for my feet, back and that I now use a cane to walk (Only 43 years old)(I took the word of the guy at the RO big mistake) and I filed for an increase and then they sent me to another C&P exam. I was contacted by another man from the RO who was confused by entire matter (Welcome aboard I told him) He sent me a letter about 6 months ago stating that I was 100% T&P signed by the head of Milwaukee's RO. So I thought I would cancel the claim, and when I did I got the same thing that I was not 100% T&P, but 90%IU with T&P he was unable to explain the difference. So I continued the increase. Then I got another call that said my claim was for SMC sence I maxed out my percentages. So that is where that stands.

The other question I had was reguarding service connection for side effects from medication. I take 21 meds per day and have 11 side effects and I filed secondary service connection for that as well. I also had a medication evulation done outside the VA and submitted that as addtional edivence. I appriciate any help. Thank you all. God bless

[Jay Johnson]

Typical VARO smoke screens in order to get you in for a reduction. I would cancel the claim all together. If they are indeed looking into an increase for SMC you have a right to terminate your claim at any time. Now, since new evidence was presented, they CAN reopen the claim themselves, but at elast then you'll know what their original intentions were. They pulled the same thing with my wife...they try to trick you into C&P exam illegally, in order to get some evdience to open your P&T claim against your will (the only way to open a P&T claim is if NEW evidence is provided, hence them tricking you into a C&P).

I would also file a CUE under -

§ 3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (B) and © of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

( Compensation cases—(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph ((2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

© Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

And a CUE under this regulation if/when they try to reduce you -

§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

(:D Tuberculosis; compensation. In service-connected cases, evaluations for active or inactive tuberculosis will be governed by the Schedule for Rating Disabilities (part 4 of this chapter). Where in the opinion of the rating board the veteran at the expiration of the period during which a total rating is provided will not be able to maintain inactivity of the disease process under the ordinary conditions of life, the case will be submitted under §3.321.

© Individual unemployability. (1) In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of §3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. When in such a case the veteran is undergoing vocational rehabilitation, education or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her, or unless the physical or mental demands of the course are obviously incompatible with total disability. Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718 shall be considered evidence of employability.

You can also use the second regulation as a basis for CUE because they reopened your claim and scheduled a reexamination without any new material evidence to suggest an improvement. I would also use these regulations to get your SO motivated and for your local senator's office. Make sure you make it clear that all you wanted was a letter stating that you were P&T and that the RO told you that you weren't and said you MUST report to a C&P.

I wouldn't worry too much as the requirements for lowering a P&T TDIU claim are quite difficult to prove. The doctor did say something to giev them a window though..essentially, he/she said that the prior decisions were false which can lead to a reduction based on the RO calling CUE on itself, but this will be quite difficult given the higher of two evaluations rule and the reasonable doubt rule (not to mention the preponderance of evidence rule). I would suggest that you use Bash's IME AND get a seperate civilian examination from a specialist (even if it's out of pocket costs..in fact out of pocket appointments are much quikcer then waiting on a insurance company and time is not your friend).

Basically, throw the book at everyone you can..this includes writing the regional director's office (or calling), writing your senator, getting your SO more involved (sounds like a bad one to me, you may want to change), contact your local newspaper with clear facts of your case and how they are tricking you, and many vets, into lowering your compensation because of the cost of this war (politics are your friend) and contact the secratary of the VA and file a complaint (but be sure to keep it in the context of "you just wanted a letter and the RO forced you into a C&P via a lie.....the secretary will not get involved in adjudication issues).

Hope some of this actually helps:-)

[Bound4heaven]

Thank you Jay for you time responding to my issues.

My American L. Service officer wants the RO to make a decision asap, and use DR. Bash's IME for an appeal if needed. Would I be better to wait on DR. Bash's IME prior to the RO making a decision?

It is very confusing for me and I have been dealing with my local RO for 8 years. It amazes me how I have been treated over the years. Please do not misunderstand me. One of my 4 doctors is a blessing and went to bat for me when I applied for SSD and I got approved. In general I have had a bad time of it with the RO. It seems I have to prove and prove my-self all over again. The rudeness and boldness of my local RO is not on the side of the Veteran who thinks as once as I did they are.

I also brought into play an outside medication evulation of the 21 meds I now take. Do you or anyone else know if it will make a difference. I filed service connection for side effects from the all the meds. Thank you, and God bless.

[Jay Johnson]

Thank you Jay for you time responding to my issues.

My American L. Service officer wants the RO to make a decision asap, and use DR. Bash's IME for an appeal if needed. Would I be better to wait on DR. Bash's IME prior to the RO making a decision?

It is very confusing for me and I have been dealing with my local RO for 8 years. It amazes me how I have been treated over the years. Please do not misunderstand me. One of my 4 doctors is a blessing and went to bat for me when I applied for SSD and I got approved. In general I have had a bad time of it with the RO. It seems I have to prove and prove my-self all over again. The rudeness and boldness of my local RO is not on the side of the Veteran who thinks as once as I did they are.

I also brought into play an outside medication evulation of the 21 meds I now take. Do you or anyone else know if it will make a difference. I filed service connection for side effects from the all the meds. Thank you, and God bless.

I don't understand how a fast decision is in your best interest. Once they make a decision you are fighting an uphill battle with, what could be, a lower amount of compensation. It's a lot less stressful to get a good first evaluation then trying to fight to get your old level back. Either way, it is VERY difficult for them to reduce a TDIU P&T claim....if you can't work and there is no evidence to suggest that you can, then they cannot lower you. To be safe I would seek another civilian evaluation of all of your disabilities, even if it takes a few visits to different specialists. The VA MUST take the civilian evaluation over the C&P if the civilian doctors are better qualified to make the decisions (IE - a cardiolist can better diagnos you then a primary C&P doctor). So, get some more evidence on your side, just in case, and do so as quickly a possible.....even if it costs you 100's of dollars to get the evals, it will be worth it when you save $1200 a month in lost compensation.

[Guest allanopie]

>The examiner was a N.P and extremely rude to me. She asked me questions that had nothing to do with my exam (Why do my wife and I adopt special needs children, and was I drinking I havn't drank in over 10 years) I informed her that was not while I was there. I have many bi-lateral foot issues and she asked me to stand on my toes and I informed her I could not and she became furious at me telling me I was combatant and she would make sure that was known.

Hello Bound4heaven,

This is identical to what I experience & by a NP. It wasn't at the Spokane VAMC C&P dept, was it?