ptsd They Reduced Me Anyways!

[souldeliverer]

After my hard work in compiling evidence, the VA reduced my PTSD from 100% to 70%. If that wasn't enough, they also proposed to reduce my migraines from 30% to 10%!!! What is really going on at my RO? What should I do from here on out? Could this be age discrimination? Have I unwittingly made an enemy within the RO?

I am faxing and mailing my TDIU form tomorrow, and submitting a hearing request for the migraine reduction. Also, they are leaving my back comp at 10%, which I believe should be at least 30% for all the dang narcotics they have me on.

Can I submit an NOD for the PTSD reduction while simultaneously filing for TDIU???

Please look up my other posts for background info, or I can look them up if need be. I really need help with this one. I am getting jacked.

Please see: Had My Hearing For Ptsd Proposal To Reduce

Thank you all.

Edited June 13, 2008 by souldeliverer

[john999]

Perhaps you can get yourself into a inpatient PTSD program and misbehave. If you can drum up some inpatient records of severe PTSD symtoms it could help. Your words have put you in a bind. Never say anything good about yourself to the VA. Not ever!!!!! You need an IMO that says you cannot work due to PTSD. A GAF of 35 translates to 100% not 70%. You can turn it around, but now it will take time. Get back in treatment at the VA and start complaining. You need to be on meds also ASAP. For those of us getting IU or 100% from the VA we should stay in treatment forever. Everytime you go to the VA you are documenting your illness. That is what the VA thrives on and that is probably why they went after you because you stopped going to treatment. When you stop treatment you are cured according to the VA. I believe this is how they see it ,right or wrong. Some may disagree with me but that is how I see it after many years. Never stop complaining about your symptoms.

[Pete53]

Fact is going to Hospital always helps mental claims. I spent a month in and I doubt if I would have won 5 years later without the Hospitalization.

[john999]

If I had not got myself admitted to a VA hospital during the first year after my discharge I would not have gotten service connected. If I had not gotten admitted later I would not have gotten IU and P&T.

[Wings]

x

x

x

You could FAX that VARO a Request to stay or "extend" final action due to the fact that you have provided "new and material evidence" in that VA Form 21-8940. Did you or did you not, submit that VA Form before after or during that "notice of proposed reduction"?! ~~Wings

TDIU VA FORM 21-8940 http://www.ptsdmanual.com/forms/218940.pdf

38 CFR 3.341 ( c) Program for vocational rehabilitation. Each time a veteran is rated totally disabled on the basis of individual unemployability during the period beginning after January 31, 1985, the Vocational Rehabilitation and Employment Service will be notified so that an evaluation may be offered to determine whether the achievement of a vocational goal by the veteran is reasonably feasible. (Authority: 38 U.S.C. 1163) [46 FR 47541, Sept. 29, 1981, as amended at 50 FR 52774, Dec. 26, 1985; 55 FR 17271, Apr. 24, 1990l; 58 FR 32445, June 10, 1993; 68 FR 34542, June 10, 2003]

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http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch02.doc

d. Extending the Adverse Action Proposal Period

The adverse action proposal period may be extended for

• the development of evidence, or a hearing, if the hearing is requested within 30 days following the release of a notice of proposed adverse action.

In addition, the base period may be extended to allow time for an administrative action or a rating decision.

The table below gives examples of different scenarios and time extensions.

Basis for Change in Award Base Adverse Action Proposal Period Possible Extensions Total

• Third party, or

• Apportionment request 65 days (60-day period + 5 days)

• 30–60 days for development of evidence, and/or

• 30–60 days for hearing 65–185 days or more if extensions are warranted

9. General Information on the Adverse Action Proposal Period, Continued

d. Extending the Adverse Action Proposal Period (continued)

Basis for Change in Award Base Adverse Action Proposal Period Possible Extensions Total

• Administrative action, or

• rating decision • 65 days (60-day period + 5 days)

• time for preparation of the actual decision, and

• 65 days following decision (60 day period + 5 days) • 30–60 days for development of evidence, and/or• 30–60 days for hearing 130 days + time for administrative or rating decision + any extension time needed

10. Responding to the Beneficiary

Introduction This topic contains the procedures for responding to the beneficiary, including

• insufficient evidence received, or no response within 60 days

• premature receipt of notice of disagreement (NOD)

• evidence received in 60 days requiring further development

• request for VA to obtain evidence

• evidence received supporting third party information

• evidence received which is favorable to the claimant received

• evidence received in 60 days was not reviewed• request for immediate implementation of adverse action, and

• waiver requests.

a. Insufficient Evidence Received, or No Response within 60 Days Follow the steps in the table below if the beneficiary either fails to respond within the 60-day period, or if he/she submits insufficient evidence to justify a change in the proposed action.

Step Action

1 Is a rating decision needed because the proposed adverse action was initiated with a rating decision?

• If yes, route the claims folder to the rating activity at the end of the due process period. (Note: The rating activity will make an immediate decision and then route the folder to authorization for processing.)

• If no, route the claims folder to authorization. (Note: Authorization will reduce, suspend, or terminate benefits using the appropriate effective date provisions.)

Reference: For more information on reductions and discontinuances, see 38 CFR 3.500–3.505.

2 Notify the beneficiary of the final decision.

Continued on next page

10. Responding to the Beneficiary, Continued

b. Premature Receipt of NOD Follow the steps in the table below to determine how to treat a NOD received in response to an adverse proposal before a final decision is made.

If VA receives a premature NOD ... Then ...

without supporting evidence • advise the beneficiary that the NOD is premature, and

• explain that the appellate process can only be initiated after a final decision has been made.

Note: Incorporate this explanation into the final notice only if the NOD is received near the end of the 60-day period.

with supporting evidence assume that the statements made in the premature NOD refer to the supporting evidence, rather than a request to appeal.

c. Evidence Received Within 60 Days Requiring Further Development If a beneficiary submits evidence that requires further development

• continue payments

• immediately begin to develop and evaluate additional evidence

• advance the pending issue suspense date for the proposed adverse action period for development of the evidence (60 days for evidence from all sources), and

• hold all the material obtained until

- reasonable efforts to obtain additional evidence have been exhausted, or

- a final decision can be made.

Reference: For more information on reasonable efforts to obtain evidence, see

• 38 CFR 3.159©(1), and

• M21-1MR, Part I, 1.C.6.b (TBD).

Exception: If the results of this development clearly indicate continuing entitlement to current benefits or new entitlement to greater benefits, notify the beneficiary immediately and take appropriate award action.

Continued on next page

10. Responding to the Beneficiary, Continued

d. Requests for VA to Obtain Evidence

Follow the steps in the table below to determine the action to take when a beneficiary requests that VA obtain evidence.

If the beneficiary requests that VA obtain evidence from ... Then ...

a non-Federal source • request evidence, allowing 60 days for all other sources to respond

• delay proposed action specified in the notice of proposed adverse action until the evidence is received or reasonable efforts to obtain it have been exhausted.

Federal government sources that may have an impact on the proposed decision

Examples:

• Records from military hospitals, and

• VA outpatient records. do not take the action specified in the notice of proposed adverse action until evidence is received or until further efforts to obtain it are found to be futile.

Reference: For more information on reasonable efforts to obtain evidence, see

• 38 CFR 3.159©(1), and

• M21-1MR, Part I, 1.C.6.b (TBD).

Federal sources that will not have an impact on the proposed decision

• request evidence, but

• do not delay the action specified in the notice of proposed adverse action if the information is not received during adverse action proposal period.

e. Evidence Received Supporting Third Party Information

If the beneficiary sends documentary evidence that supports third party information used in determining the change

• make immediate adjustment, and

• send the beneficiary a notice of the implemented adverse action.

Continued on next page

10. Responding to the Beneficiary, Continued

f. Evidence Favorable to the Claimant Received

Once a notice of proposed adverse action is sent, if new evidence establishes that the adverse action should not be taken, then

• take appropriate action to amend or reverse the proposed action, and

• immediately inform the beneficiary of the decision.

g. Evidence Received in 60 Days Was Not Reviewed

If you discover that evidence received on or before the 60th day was not reviewed before the adverse action was taken, promptly review the adverse action as described in the table below.

If ... Then ...

the additional evidence does not change the adverse decision

• confirm and continue the decision, and

• fully advise the beneficiary of this decision and his/her appellate and procedural rights.

Note: Under 38 CFR 20.304, this confirmed and continued decision, if made before the original decision became final, does not extend the claimant’s appeal period for that decision, and refer him/her to the appellate and procedural rights issued with the earlier decision.

further development is needed •restore the beneficiarys payments until development is completed and a final decision made

• send a letter explaining the basis for resumed payments, and

• include a warning that adverse action may be appropriate if the evidence does not support continued payments.

12. Sending Final Notice

Introduction Whether the final determination is favorable or adverse, VA must send the beneficiary a final notice of the decision. This topic contains information on

• requirement for sending a final notice

• required elements of the post-adverse action notice, and

• procedure for sending the final notice.

Change Date October 13, 2004

a. Requirement for Sending a Final Notice The final notice of the decision must be sent to the last address of record for the

• beneficiary, and

• beneficiary’s designated representative (if any).

Reference: For more information on determining where to send a notice, see M21-1MR, Part I, 2.B.6.b.

b. Required Elements of Post-Adverse Action Notice Every post-adverse action notice, like a contemporaneous notice, must include the following elements:

• statement of decision (including new rate(s), if applicable)

• statement of applicable effective date(s)

• detailed reasons for decision

• overpayment information, and

• appeal rights.

However, in a post-adverse action notice, the elements describe a completed rather than a proposed award action

Continued on next page

12. Sending Final Notice, Continued

c. Procedure for Sending the Final Notice Follow the steps in the table below to send the final notice.

Step Action

1 Compose the final notice using all of the required elements and language.

References: For more information on the required elements of the final notice, see M21-1MR, Part I, 2.C.12.b.

14. Information Received by Telephone

Introduction This topic pertains to the receipt of information by telephone, including

• when a contemporaneous notice is appropriate, and

• restoration of benefits following an adverse action taken.

Change Date October 13, 2004

a. When a Contemporaneous Notice is Appropriate

When information that would reduce or terminate benefits is received by telephone, a contemporaneous notice is appropriate only if the verification and documentation procedures shown in M21-1MR, Part III, Subpart iii, 1.B.2 (TBD) or M21-1, Part III, 11.18 have been followed.

Reference: For more information on documenting information received by telephone, see

• 38 CFR 3.217(b), and

• M21-1MR, Part III, Subpart iii, 1.B.2 (TBD) or M21-1, Part III, 11.18.

b. Restoration of Benefits Following an Adverse Action Taken Retroactively restore benefits that were adversely affected based on information received by telephone if, within 30 days of the date that the contemporaneous notice is issued, the beneficiary or his/her fiduciary asserts that the adverse action was based upon information

• that was inaccurate, or

• not provided by the beneficiary or his/her fiduciary.

Reference: For more information on restoration of benefits following an adverse action, see 38 CFR 3.103(b)(4).

15. Notification

Introduction This topic contains information on the contemporaneous notification and hearings, including

• requirement for sending the contemporaneous notice, and

• required elements of the contemporaneous notice.

Change Date October 13, 2004

a. Requirement for Sending Contempor-aneous Notices Any notice of change or proposed change in benefits, including the contemporaneous notice, must be sent to the current address of record, or the most recent address, such as that in the Benefits Delivery Network (BDN), of the

• beneficiary, and

• beneficiary’s designated representative (if any).

b. Required Elements for Contempor-aneous Notice Every contemporaneous, like the post-termination/reduction, notice must include the following elements:

• statement of decision (including new rates)

• statement of effective date(s)

• detailed reasons for decision

• overpayment information, and

• appeal rights.

However, in a contemporaneous notice, the elements describe a completed rather than a proposed award action

16. Hearings and Contemporaneous Notice

Change Date October 13, 2004

a. Hearings in Contempor-aneous Notice Cases When a hearing is requested in a contemporaneous notice case

• place the case on the regular hearing docket, and

• send a letter advising the beneficiary of the time and place of the hearing at least ten calendar days before the scheduled hearing date to allow the beneficiary reasonable preparation time.

The Decision Review Officer (DRO) or other VA personnel who did not participate in the original determination on the issue(s) under review must conduct the hearing.

Section E. Exhibits

Overview

In this Section This section contains exhibits of the language that must appear in due process notices to beneficiaries:

Topic Topic Name See Page

17 Exhibit 1: Notice of Proposed Adverse Action–Basic Procedural Rights Paragraphs 2-E-2

18 Exhibit 2: Contemporaneous or Final Notice–Basic Procedural Rights Paragraphs 2-E-4

19 Exhibit 3: Right to Appeal Paragraph 2-E-5

20 Exhibit 4: Overpayment Paragraphs 2-E-6

21 Exhibit 5: Contemporaneous Notice on Reported Death of a Beneficiary 2-E-7

17. Exhibit 1: Notice of Proposed Adverse Action–Basic Procedural Rights Paragraphs

Introduction This exhibit provides suggested language regarding a claimant’s basic procedural rights that must appear in a notice of proposed adverse action, including paragraphs about

• submission of evidence

• minimizing potential overpayment

• the right to a personal hearing, and

• the right to representation.

Change Date October 13, 2004

a. Submission of Evidence “Your payments will continue at the present rate for 60 days following the date of this notice so that you may submit evidence to show that the proposed action should not be taken. You may submit evidence in person, through the mail or through your accredited representative.

If you wait more than 60 days to submit evidence, we will carefully consider whatever you submit, but the adjustment of benefits described above may already have gone into effect and your benefits will continue in that status while we review the additional evidence.”

b. Minimizing Potential Overpayment “You should be aware that if you continue to accept payments at the present rate for the next 60 days, and it is then determined that the proposed adjustment must be made, you will have to repay all or a part of the benefits you have received during the 60 days. You may minimize this potential overpayment by sending us a written statement asking that, beginning with your next check, we reduce your payments while we review your case. If you make this request, and at the end of 60 days our review shows that you should have received the higher rate, we will restore the full rate from the date on which it was reduced.”

Continued on next page

17. Exhibit 1: Notice of Proposed Adverse Action–Basic Procedural Rights Paragraphs, Continued

c. Right to a Personal Hearing “If you desire a personal hearing to present evidence or argument on any point of importance in your claim, notify this office and we will arrange a time and place for the hearing. You may bring witnesses if you desire, and their testimony will be entered in the record. VA will furnish the hearing room and provide hearing officials. VA cannot pay any other expense of the hearing since a personal hearing is held only on your request.

If, within 30 days from the date of this notice, VA receives a hearing request from you, payments will continue at the present rate until the hearing is held and testimony is reviewed. You should be aware that continuing to receive the current rate of payment until a hearing is conducted could result in the creation of an overpayment which must be repaid. If you request a hearing but wish to minimize any overpayment which could result, you should submit a statement asking that your benefits be reduced or suspended beginning with your next check.

After 30 days, you may request a hearing, but benefits will already have been adjusted as explained earlier in this notice.”

d. Right to Representation “You may be represented, without charge, by an accredited representative of a veterans organization or other service organization recognized by the Secretary of Veterans Affairs. You may also be represented by an attorney. However, under 38 U.S.C. 5904©, an agent or attorney may only charge you for services performed on or after the date of a final decision by the Board of Veterans Appeals. If you desire representation, let us know and we will send you the necessary forms. If you have already designated a representative, no further action is required on your part.”

18. Exhibit 2: Contemporaneous or Final Notice–Basic Procedural Rights Paragraphs

Introduction This exhibit provides language regarding a claimant’s basic procedural rights that must appear in a contemporaneous or final notice, including the paragraphs about

• the submission of new evidence

• the right to a personal hearing, and

• the right to representation.

Change Date October 13, 2004

a. Submission of New Evidence “You may submit additional evidence to strengthen your claim. It is in your interest to send us any new evidence as promptly as possible. We will carefully consider it and let you know whether it changes our decision.”

b. Right to a Personal Hearing “If you desire a personal hearing to present evidence or argument on any point of importance in your claim, notify this office and we will arrange a time and place for the hearing. You may bring witnesses if you desire and their testimony will be entered in the record. VA will furnish the hearing room and provide hearing officials. VA cannot pay any other expenses of the hearing since a personal hearing is held only upon your request.”

c. Right to Representation “You may be represented, without charge, by an accredited representative of a veterans organization or other service organization recognized by the Secretary of Veterans Affairs. You may also be represented by an attorney. However, under 38 U.S.C. 5904©, an agent or attorney may only charge you for services performed on or after the date of a final decision by the Board of Veterans Appeals. If you desire representation, let us know and we will send you the necessary forms. If you have already designated a representative, no further action is required on your part.”

19. Exhibit 3: Right to Appeal Paragraph

Change Date October 13, 2004

a. Appeal “You may appeal our decision to the Board of Veterans Appeals at any time within one year from the date of this letter if you believe the decision is not in accord with the law and the facts now of record. You can start the appeal process by filing a notice of disagreement. You may do this by writing a letter to this office stating that you wish to appeal. If more than one benefit is involved, you should identify the benefit or benefits you are appealing. If you decide to appeal, we will advise you further as to your procedural rights as your claim progresses through the several stages of the appeal process.”

Edited June 18, 2008 by Wings

[souldeliverer]

Wings,

I sent in my TDIU form after the 60 day period of proposal, because I thought I wouldn't need it. My case seemed to be so strong. I sent it in after they officially determined to reduce me. I am sorry also, my brain is a little foggy due to my symptoms at this present time. What does this long thing you just sent me mean for me? What are my options? I don't have anyone to help me here. My DAV rep was trying to talk me out of a formal hearing, and telling me I should just accept the reduction. He is NOT on my side. What can I do.

For the rest of you... I was in a 3 month PTSD tx program about 18 months ago and was kicked out half way through. I then completed the 6 week coarse last fall. I only quit going to tx at the vet center, but continued my counciling at the VA in the PTSD clinic. What I am saying is, I NEVER DROPPED OUT OF TREATMENT.

Any suggestions? Thank you all for your help.

[cowgirl]

I wish you patience with us here at Hadit.

What paperwork do you have in at the VA just now? I read the posts here and want to understand.

Fyi, I think my sc mh rating was helped by self admitted inpatient care, revealing & factual stressor letter and now meds.

best to ya. cg