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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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souldeliverer

Had My Hearing For Ptsd Proposal To Reduce

Question

REBUTTAL

To whom it may concern:

The purpose of this letter is to state the reasons why I disagree with your proposal to reduce the benefits of Xxx, for PTSD compensation from 100 percent disabling, to 70 percent disabling. I will provide evidence which will keep my compensation for PTSD at 100 percent, and be considered permanent and total.

VA regulations impose a duty on the VA to make an explicit finding that the preponderance of evidence shows that there has been improvement in any disability rating that the VA proposes to reduce. Specifically, 38 C.F.R. 4.1 (2007) states that "t is…essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. 4.2 (2007) establishes that "t is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veterans disability…Furthermore, 38 C.F.R. 4.13 (2007) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms."

Pursuant to these provisions, it is obvious that in any rating-reduction case, the RO and BVA are required to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations (Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). See also Lehman v. Derwinski, 1 Vet. App. 339, 342-43)

Thus, the VA is required to review the entire evidence of record and to determine and make an explicit finding as to whether the evidence shows that there is an actual improvement in a veteran's disability since the last rating decision which either granted or continued the disability rating before the VA may reduce the disability rating.

In addition to these VA regulations, Manual M21-1MR, Part III, subpart iv, 8.D.12( :unsure: requires the VA to make findings that the evidence demonstrates improvement before a rating reduction is made. Specifically, it states that the VA must:

-outline the time period in which application of 38 C.F.R. 3.344 (stabilization of disability evaluations) is based

-cite evidence of sustained improvement after one review examination, or a preponderance of evidence showing sustained improvement based on more than one examination and

-explain why it is reasonably certain that improvement will be maintained under ordinary conditions of life.

Therefore, 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.

My contention is that it is quite obvious from review of my medical records that my condition has not at all improved, and I have certainly not shown material improvement under the ordinary conditions of life. It is my belief that after these last two years since my service in Iraq, that my PTSD symptoms seem to be the same or even worse. I have spent nearly two months as an inpatient on psychiatric wards over the last two years. My marriage is constantly on the rocks. Since my military discharge I have been experiencing symptoms of high anxiety with panic attacks, paranoia, constant and racing intrusive thoughts, flashbacks of war zone trauma, dissociative episodes, and chronic sleep impairment with nightmares. I am unable to hold a steady job despite multiple efforts due to exacerbation of my symptoms while on the job, so I have not worked since November of 2006. I am collecting Social Security Disability, which further proves my inability to maintain gainful employment. I was recently medically retired from Federal Employees Retirement System, due to my inability to maintain gainful employment because of my chronic and severe PTSD.

By reviewing the medical evidence already provided to you, you shall see that there is more than enough evidence to prove that I should retain my 100 percent service connection for PTSD for evidence of total occupational and social impairment, due to such symptoms as gross impairment in thought process or communication; persistent delusions and hallucinations; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living.

As the evidence of record will show, this rating of 100 percent disabling for PTSD should remain, and be considered permanent and total, which would also entitle me to continue receiving special monthly compensation due to meeting housebound criteria.

According to 38 C.F.R. 3.343(a) (2007), in the absence of clear error in its previous total disability rating, the issue the VA must decide is whether there has been material improvement in the physical or mental condition evaluated as 100 percent disabling. As can be seen in my medical records, I am still experiencing all of the same symptoms which were present when I received the SOC dated December 1, 2006 (exhibit A3). Furthermore, any perceived improvement was not attained under the ordinary conditions of life, i.e., while working or actively seeking work.

There are other VA regulations and substantive rules which protect a disability rating from being reduced. In Faust v. West, the CAVC made it clear that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect. For example:

-Any proposed reduction must be based upon review of the entire history of the veteran's disability.

-The VA must determine if there has been an actual change in the disability.

-Any improvement must reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work.

-Examination reports reflecting any such change must be based on thorough examinations.

Given the above mentioned conditions, laws, codes, and regulations, it would be unlawful to reduce my benefits. The following will be evidence that my condition remains unchanged, and should remain at 100 percent disabling, and also be considered permanent and totally disabling.

According to the evidence, exhibit A3, I was granted compensation for PTSD being 100 percent disabling because a review of my treatment records showed ongoing outpatient and inpatient treatment for my PTSD symptoms. Also for exhibiting symptoms of high anxiety with panic attacks, intrusive thoughts, paranoia, chronic sleep impairment with nightmares, and auditory hallucinations. A letter from Dr. xxx (evidence Exhibit D1) notes my symptoms have had a major impact on my occupational functioning. I have been unable to work due to exacerbation of my PTSD symptoms, despite multiple efforts (see social security records). My marriage has been strained since my return from Iraq (see evidence Exhibit G). I was assigned a rating of 100 percent for evidence of total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions and hallucinations; persistent danger of hurting myself or others; and intermittent inability to perform activities of daily living.

Since the time of that rating decision, I have been participating in outpatient and inpatient treatment. I see Dr. xxx on a regular basis at VAMC XXX. I see xxxLCSW for cognitive behavioral therapy and trauma processing once per week at VAMC XXX. I also see xxx LCSW PhD at the Vet Center once or twice per week for psychotherapy.

I have received two more letters from Dr. xxx (Exhibits D2, and D3). In Exhibit D2, dated August 20, 2007 Dr. xxx described my symptoms which include: predominant symptoms of anxiety, mood swings, panic attacks and flashbacks. She also describes how these symptoms have caused me total occupational impairment. She also stated in the letter that the condition is considered chronic and long-term, and that no definite date of improvement could be predicted. In Exhibit D3, dated April 17, 2008, Dr xxx wrote me another letter for the purpose of this hearing. In it she describes my symptoms of: "nightmares, flashbacks, sleep disturbances, difficulty with anger management, and panic attacks." She then goes on to state that, "Mr. xxx has, as a result of the above mentioned symptoms, experienced considerable difficulty with controlling his symptoms of panic and anxiety and in maintaining interpersonal relationships, resulting in him being unable to maintain any kind of employment despite repeated efforts on his part. It is expected that Mr. xxx will continue to be in treatment on a long-term, and given his current symptoms, it is unlikely that he will be able to maintain productive employment on an ongoing basis." These two letters from Dr. xxx are concrete evidence of my inability to adjust to social and occupational settings.

Reasons for Decision

In Exhibit A1, under reasons for decision, paragraph one discusses my hospitalization at civilian hospital in August, 2006. They had diagnosed me with major depression, single episode, with psychotic features. I was said to be agitated, tremulous, anxious, and irritable with a constricted affect range. According to the DSM-IV diagnostic criteria for 309.81, C. states; "Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (4) markedly diminished interest or participation in significant activities; (5) feeling of detachment from others; (6) restricted range of affect (e.g., unable to have loving feelings; (7) sense of a foreshortened future." As it plainly describes throughout my medical records, I suffer from all of these symptoms. Each of these symptoms also describes major depressive disorder according to the DSM-IV. My depression is a direct result of my PTSD, due to the feelings of guilt, worthlessness, isolation, and being worn down by my symptoms. See Exhibit C17 for link between depression and PTSD. In Exhibit C11, it is noted that I have suicidal ideations because I have grown tired of having hallucinations, dissociations, and feelings of guilt caused by my service in Iraq.

In Exhibit A1, under reasons for decision, paragraph two, it is described that I was having a very good day. I may have even smiled. My GAF score was 50. According to the DSM-IV, the score of 50 still describes, "serious symptoms or any serious impairment in social, occupational, or school functioning. For me to have been rated 50 on a good day shows the severity of my impairment due to my symptoms of PTSD. This note is obviously inconsistent with the rest of the medical evidence and in the light of the whole recorded history, you must reconcile the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.

In Exhibit A1, reasons for decision paragraph 3, indicates that I do not have a total occupational and social impairment due to post traumatic stress disorder, despite the fact that my symptoms cause deficiencies in judgment, thinking, family relations, work, mood and school. I am unemployed. My marriage is strained. I have no friends. I have a history of one suicide attempt and three violent episodes in public. I described daily homicidal and suicidal thoughts. My remote memory is moderately impaired, and my recent memory is severely impaired. The examiner also stated that I have poor impulse control, as seen in Exhibit C25. This examiner perfectly described that I am in persistent danger of hurting self and others, as evidenced by my previous suicide attempt, my violent episodes in assaulting three men, and my daily thoughts of suicide with a plan and homicide, with a plan. He also described my intermittent inability to perform activities of daily living (including maintenance of personal hygiene). The examiner then diagnosed me with PTSD, chronic, severe; and awarded me a GAF score of 42. I contend that with the information provided by the examiner, to include the diagnosis of severe PTSD, a GAF of 42 which indicates serious impairment in social and occupational functioning, and the above mentioned symptoms, my PTSD is totally occupationally and socially impairing. My condition has not improved, and I still meet the criteria for 100 percent compensation.

In Exhibit A1, reasons for decision, paragraph 4 notes a record dated December 12, 2007 and describes a euthymic mood and flat affect, fair insight and judgment, and I was awarded a GAF of 35. This note is Exhibit C17. What is not mentioned in Exhibit A1, is that I described a strained marriage which causes me a great deal of stress. I spend most of my time sitting around, and do not like to leave the house because I no longer enjoy being around people. The author of Exhibit C17 stated that, "It appears his PTSD and depression affect his engagement in pleasurable activities." C17 also describes my previous suicide attempt, and my thoughts of suicide. The author went on to write, "Although he reported some relief due to his psychotropic medications, his score of 51 on the BDI-II indicated severe levels of depression. Although Mr. xxx has a history of more than one major depressive episode, his elevated BDI-II score may be due to his severe PTSD…" This is a link between my depression and PTSD symptoms. My condition has not improved.

According to Exhibit A1, reasons for decision, paragraph 5, you are proposing to reduce the evaluation to 70 percent based on the examiner's assessment of occupational and social impairment, with deficiencies due to mood disturbances, impaired impulse control, difficulty in adapting to stressful circumstances, and difficulty establishing and maintaining effective relationships. A higher evaluation of 100 percent is not warranted unless there is total occupational and social impairment due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. It also states there is likelihood for improvement. I argue that either the examiner did not review the entire history of my disability, or he made a clear and unmistakable error in stating that I am not totally occupationally and socially impaired.

1.) Gross impairment in thought process or communication: Exhibit C4 notes that I am explosive and easily provoked. In Exhibit C6, it is noted that since returning from Iraq, I am unable to express emotion, and this has affected the quality of my marriage. Exhibit C10 notes that I am unable to feel and express emotion the way I was able prior to the war zone trauma. Exhibit C14 states that I am easily angered during frequent arguments, and have demonstrated external behaviors such as throwing things. Exhibit C19 states that my thinking and judgment are impaired. C23 and C24 state that I am experiencing paranoia. This is all evidence that my PTSD grossly impairs my ability to communicate. In exhibit C25, it is noted that I do not have control of my thoughts, as I dissociate, and have flashbacks which are out of my control. This is well documented throughout my medical records(see Exhibits: C1, 5, 6, 7, 10, 11, 12, 15, 16, 18, 19, 20, 21, 22, 23, 24, and C25). Exhibit C4 and C25 note the memory problem I have. There is about a year of my life which I simply do not remember. It took place from late 2005 through some time in 2006.

2.) Persistent delusions or hallucinations: In Exhibit C2, C3, C6, C11, C12, C19, C22, and C25 all describe the persistent auditory hallucinations I experience. These hallucinations are very real and distressing, and trigger a whole bunch of other symptoms. I experience visual and auditory hallucinations. The visual hallucinations occur while driving, where I see IED's on the side of the road. I also am incapacitated by flashbacks, where I dissociate and relive combat no less than 5 times per week. Persistent hallucinations hugely impact my quality of life, including my social and occupational functioning. It is also well documented that I suffer from delusions. Many notes talk about my paranoia, including Exhibit C6, C19, C21, C22, C23, C24. Exhibit C19 notes my delusions of people out to harm me and my family, spying on us. C21mentions my belief that there is a terror cell of arabs living in my apartment complex, disguised as Mexicans.

3.) Grossly inappropriate behavior: In much of the medical evidence, you can read about fist fights I have gotten into, including Exhibit C25. This is far from something I would have done prior to my service in Iraq. In Exhibit C18 it is documented that I allegedly threatened a patient while working at VAMC XXX, and also allegedly told a nurse I wanted to strangle her. I do not remember these incidents, as this is during the time period which I cannot remember.

4.) Persistent danger of hurting self or others: Exhibits C5, and C25 records the fact that I once attempted suicide. I have also physically assaulted three men in the past year or so. Exhibits C1, C4, C6, C7, C13, C17, C21, C22, and C25 all clearly document my homicidal and suicidal thoughts, ideas and plans. Exhibit C22 states that I show a very high level of risk.

5.) Intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene): In Exhibit C25, the examiner stated that I am not able to perform activities of daily living as my wife has to tell me to shower, and shave, as I only shower when I have to leave the house (3-5 times per week). In Exhibit 25, you can also read that my wife has to remind me to take my medications on a daily basis. She also has to remind me to eat. She wakes me up in the mornings.

6.) Since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination: In the evidence of record, Exhibit D3, Dr. xxxx stated, "It is expected that Mr. xxxx will continue to be in treatment on a long-term, and given his current symptoms, it is unlikely that he will be able to maintain productive employment on an ongoing basis."

In summation I will say, any proposed reduction must be based upon review of the entire history of the veteran's disability. In order to reduce my compensation level, one would have to either ignore the entire history of my well documented disability, or make an error.

Secondly, the VA must determine if there has been an actual change in the disability. I believe that I have proved there has been no change in my disability. If there has been any change, it is for the worse, as stated in Exhibit C20, where Dr. xxxx stated I appeared very depressed, and "the PTSD has been bothering him greatly with frequent flashbacks, panic attacks, and nightmares. He is very stressed today, and I'm concerned that his PTSD may be getting worse." The evidence shows that there has been no improvement in the severity of my PTSD.

Finally, any improvement must reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work. As you can see by the social security records you obtained, I have not worked since November of 2006.

I thank you for your time and I believe that I have provided sufficient evidence to not only remain at the 100 percent compensation level for my PTSD, but also to be considered permanently and totally disabled due to PTSD.

Edited by souldeliverer

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I think this is

SUPERB!!!!!!!!!!!!

Were you able to raise all this at the hearing?

Or did they accept this as evidence.

"I thank you for your time and I believe that I have provided sufficient evidence to not only remain at the 100 percent compensation level for my PTSD, but also to be considered permanently and totally disabled due to PTSD"

BEAUTIFUL!

A perfect template for the way to handle this VA bull crap for anyone else affected by a proposed reduction.

You did the leg work- I wish you didnt have to and I bet it even added to your PTSD-

but I think this will fully restore your comp and if they do award the P & T-it will make this stressful stuff worth the effort you put into this response.

Great job here.

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Very good work.

Good luck!

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Thank you Ms. Berta, and thank you donews. I am going to post a copy of my cover letter as well. God bless you all for your help.

I think this is

SUPERB!!!!!!!!!!!!

Were you able to raise all this at the hearing?

Or did they accept this as evidence.

"I thank you for your time and I believe that I have provided sufficient evidence to not only remain at the 100 percent compensation level for my PTSD, but also to be considered permanently and totally disabled due to PTSD"

BEAUTIFUL!

A perfect template for the way to handle this VA bull crap for anyone else affected by a proposed reduction.

You did the leg work- I wish you didnt have to and I bet it even added to your PTSD-

but I think this will fully restore your comp and if they do award the P & T-it will make this stressful stuff worth the effort you put into this response.

Great job here.

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Souldeliver, I commend you on this well written rebuttal against the VA reducing you. However, it is extremely important that you are following their procedure. Afterall, this is the VA.

How was the proposal to reduce you sent? Was it a letter form or a new rating decision form. If it is in the form of a rating decision, then you must file an official NOD , and follow the NOD wording. You may then use the same what you've written as additional evidence.

Good luck.

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That letter could be a template for any veteran to fight a reduction. You have quoted the regulations and also included medical evidence to support your position. You are on SSDI. I don't see how in the world the VA can say you are not 100%. The VA should have at least considered you for TDIU if they did plan to reduce you to 70%. Do you have any NSC conditions that might explain or offer a alternative explanation for being 100% and unable to work? I see the burden being on the VA. I believe your age is the main factor for the VA wanting to reduce you. They don't want to pay for the next 50 years. If you were 60 years old with a 100% rating it would not have happened.

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