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

[souldeliverer]

Right now all I have in is my NOD and form for TDIU. They told me it will take 2 months to decide about my TDIU...coincidently, in 2 months they will reduce me if they deny my claim for TDIU.

[Wings]

Right now all I have in is my NOD and form for TDIU. They told me it will take 2 months to decide about my TDIU...coincidently, in 2 months they will reduce me if they deny my claim for TDIU.

Soulman, I hate to dig around in VA Manuals. The newest, latest and greatest is M21-1MR (manual re-write); and that is still being re-written! My long post was coming from that M21-1MR. VA Manuals are used at the VARO level of adjudication -along with CFR's (if they're smart enough to use them). I was trying to find a way to "extend" the tolling period. I found that if you had submitted addional evidence, during that 60 day period, they would have had to adjudicate that evidence. It appears you submitted a "Rebuttal" (which was very good); and you sent that Rebuttal preceeding your formal Hearing, or at that Hearing. You did not submit any other new and material evidence? Correct?

So, now the VARO has recorded your formal Hearing. Did you get a transcript of that Hearing? Were you sworn in, or was it an "informal" hearing (no swearing in or oaths taken)? I'm just looking at Due Process Issues here.

So, now that VARO has issued a written notice of proposed reduction, effective what date?

In that same VARO Decision, they gave "reasons and basis" for their decision: determinig 70% SC PTSD vs current 100% SC PTSD.

That VARO "Decision" was full of errors (and you know that).

For one, they totally misapplied VA Directives on GAF Scores. A GAF of 42 does not represent 50% rating. A GAF of 42 represents, "Serious symptoms e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting, Or Any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

See where they said, "Based on totality of the medical evidence of record to include the most recent VA examinations and reports as discussed above, we have reduced the evaluation of PTSD from 100% disabling to 70% disabling. A careful review of the VAMC treatment (tx) records indicate the lowest GAF of 35 which is consistent with a 50% evaluation was noted in December 2007.

This is grossly misapplied VA Directives. Correction: A GAF of 35 represents, "Some impairment in reality testing or communication (e.g., speech is at time illogical, obscure or irrelevant), Or Major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friend, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home and is failing in school).

See here http://www.avapl.org/gaf/GAFSheet.html !!!

Additional errors: They cited one examiner's report --that did not even list a Diagnosis or GAF Score.

Moreover, there would need to be a genuine PTSD "re-eval", C&P Examination to properly reduce compensation. My opinion, but I can find the Regs!

See here, DVA GAF Scale Ratings, and Directives (*Note, This rating form was created by Dr. Ray Wintker of the Murfreesboro VAMC. His phone number is (615) 893-1360, ext. 3529. Dr. Robert Fowler, Chief of Mental Health at the Dallas VAMC, contributed to this revision of the rating form) http://www.avapl.org/gaf/GAFSheet.html#Global

See also VA Directives, http://www.avapl.org/gaf/gaf.html

VHA Directive 97-059

INSTITUTING GLOBAL ASSESSMENT OF FUNCTION (GAF) SCORES IN AXIS V FOR MENTAL HEALTH PATIENTS

NOTEWORTHY: is your "inferred claim" for TDIU in that same VARO Decision, "The letter from Dr so and so, PhD, dated April 11, 2008, notes, "he relates that he is unable to work at this time due to his PTSD symptoms." AND, that same Decision also notes, "We have no objective evidence that you are unable to work due to your PTSD . . . ". Here, they blatantly contradict themselves. Objective evidence is your testimony, as well as GAF scores that accurately reflect "major impairments" and "inability to to keep a job" !!

ALSO, that General Counsel Precedent Decision is VERY significant to your claim. Find a good copy and print it out.

NOW YOU MUST DECIDE. Do you want to argue ad neasuem (till you puke), about their latest decision and all those errors, or do you want to focus on your Claim for TDIU. You can do both!! But, I would put some real energy into "objective" evidence that you are unemployable DUE TO PTSD DISABILITY/SYMPTOMS. Your medical evidence already suggests entitlement to TDIU, rated at 100%.

Next message will focus on your NOD and submission of VA Form for TDIU ANND how to provide "additional objective evidence" of unemployability due to SC PTSD !!

Don't give up, don't give in, BREATHE, JUST KEEP BREATHING!! That is an ORDER !!

~~Wings

[Wings]

Veterans Benefits Administration M21-1, Part VI

Department of Veterans Affairs Change 127

Washington, DC 20420 September 2, 2005

Veterans Benefits Manual M21-1, Part VI, “Rating Board Procedures,” is changed as follows: Pages 7-II-1 and 7-II-2: Remove these pages and substitute pages 7-II-1 and 7-II-2 attached.

Paragraph 7.07b(1)(a) is deleted and paragraph 7.07b(1) reorganized and revised to reflect that a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is required whenever a claim for individual unemployability is inferred. Paragraph 7.08 is revised to state that a veteran must submit VA Form 21-8940 in order to certify employment status and establish eligibility for individual unemployability

By Direction of the Under Secretary for Benefits

Renée L. Szybala, Director

Compensation and Pension Service

Distribution:

RPC: 2068

FD:

EX: ASO and AR (included in RPC 2068)

September 2, 2005

M21-1, Part VI

Change 127

SUBCHAPTER II. UNEMPLOYABILITY DETERMINATIONS IN COMPENSATION CASES

7.07 INDIVIDUAL UNEMPLOYABILITY

a. Requirements. To establish entitlement to total compensation benefits because of individual unemployability, a veteran must claim to be unable to secure or retain employment by reason of service-connected disability.

The veteran must meet the schedular requirements of 38 CFR 4.16 or have an extra-schedular evaluation approved by the Compensation and Pension Service (211B); and be unemployable in fact by reason of service-connected disability.

The rating activity must consider both: the veteran’s current physical condition and employment status when rating claims for total compensation because of individual unemployability.

If a 100% service-connected evaluation is awarded, any pending claim for a total disability evaluation based on individual unemployability is moot. (See VAOPGCPREC 6-99.) Do not defer a decision as to the schedular degree of disability pending receipt of evidence sufficient to adjudicate the issue of individual unemployability.

b. Jurisdiction

(1) Inferred Claims

(a) Identification of Inferred Claims. It is the duty of the RVSR to identify cases in which the veteran may be entitled to individual unemployability when no specific claim for the benefit has been made. When the record contains evidence of potential entitlement to a total disability evaluation based on individual unemployability, that evidence becomes an inferred claim that must be adjudicated. (See Norris v. West, 12 Vet. App. 413 (1999).)

For a claim for individual unemployability to be inferred, the schedular requirements of 38 CFR 4.16(a) must be met, and there must be evidence in the veteran’s file or under VA control that shows that he or she might be unemployable due to service-connected conditions.

(b) Development and End Product Control. In situations where individual unemployability is inferred, that is, the two criteria shown in subparagraph 7.07b(1)(a) above are met, the veteran will be asked to submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to certify employment status. If no other issues remain pending, the existing EP will be taken by award action or PCLR and a new EP 021 will be established at the point of initial development. The date of claim will be the date of the new VCAA notification letter to the veteran. Follow the instructions in paragraphs 7.08 through 7.11 when developing and deciding the claim.

Note: It is not proper procedure to infer a claim for IU (and send out a VA Form 21-8940) when the schedular requirements of 38 CFR 4.16(a) are met, but there is no evidence of current service-connected unemployability in the veteran’s file or under VA control.

(2) Rating Decision Procedures. The issue of potential individual unemployability entitlement will be shown as deferred in the Rating Decision. Every inferred claim for individual unemployability that is deferred for additional evidence from the veteran must be followed by a formal rating decision, either after the evidence requested has been received, or after the expiration of the notification period. If the veteran does not respond to the request for evidence within 60 days, deny the claim. Once the rating decision has been made and the veteran notified of that decision, the EP 021 established for this issue may be taken.

7.08 EVIDENCE REQUIREMENTS

A veteran must submit VA Form 21-8940 in order to certify employment status and establish eligibility for individual unemployability. Use this form as the basis for development of evidence to support the claim. When rating claims for total benefits because of individual unemployability, ensure the evidence is sufficient to evaluate both the veteran’s current degree of disability and employment status. Develop all required evidence concurrently.

a. Medical. Evidence sufficient to support a current evaluation of the extent of all of the veteran’s disabilities must be of record. The evidence shall reflect the veteran's condition within the past 12 months and include, but need not be limited to, results of VA examination, hospital reports, or outpatient treatment records. If the medical evidence of record is incomplete or inconsistent, schedule a medical examination to provide sufficient evidence to rate the claim. Request special tests only when required for proper evaluation of the degree of severity of relevant disabilities.

b. Employment. VA Form 21-8940 requires the veteran to furnish an employment history for the 5-year period preceding the date on which the veteran claims to have become too disabled to work and for the entire time after that date. It is essential that VA Form 21-8940 contain the work history. In addition, request each employer during the 12-month period prior to the date the veteran last worked to complete and return a VA Form 21-4192, “Request for Employment Information in Connection with Claim for Disability Benefits.” Forms indicating only that the veteran retired will routinely require additional development to obtain information as to whether the veteran’s retirement was by reason of disability, and if so, the nature of the disability for which retired.

c. Social Security Disability Records. If available evidence is insufficient to award individual unemployability benefits and the record shows that the veteran is receiving Social Security benefits because of disability, complete copies of the SSA records must be obtained and considered. (See pt. III, par. 9.01.)

d. Vocational Rehabilitation Records

(1) Vocational rehabilitation records must be obtained and considered in individual unemployability claims whenever there is indication that training was not found to be medically feasible. Also, vocational rehabilitation records should be reviewed if there is an indication that a veteran’s attempt to be trained was unsuccessful.

(2) The fact that a veteran either is participating in a program of rehabilitation or has completed such a program and is “rehabilitated” will not preclude a grant of total benefits because of individual unemployability. Deny claims or reduce awards only if the facts demonstrate that the veteran is not precluded from obtaining employment by reason of service-connected disability or has in fact obtained gainful employment.

e. Self-Employment or Tightly Held Corporation

(1) Development to produce evidence necessary to establish the degree to which service-connected conditions have impaired the veteran’s ability to engage in self-employment must generally be more extensive than development where the veteran worked for others. Request the veteran to furnish a statement as to types of work performed, amount of time lost in the previous 12 months due to service-connected disabilities, and number of hours worked per week.

(2) In the case of a self-employed person the issue for consideration is the relationship between the frequency and type of service performed by the veteran for the business and the veteran's net and gross earnings for the past 12 months. Low gross earnings tend to support a finding of marginal employment, especially when considered with the amount of time lost from work due to service-connected disablement. Low net earnings, on the other hand, must be considered in connection with gross income. High gross income tends to indicate that the veteran is capable of engaging in a substantially gainful occupation. Inability to make a profit is not synonymous with the inability to engage in substantially gainful employment.

(3) A tightly or closely held corporation is usually a family corporation. If the veteran’s name is the same as the corporation’s, consider the possibility of a tightly held corporation. Since the veteran may control the amount of wages paid to himself/herself, do not make a finding of marginal employment solely on the basis of low wages. If reported wages appear low for the work performed, request a field examination per part III, chapter 8 to determine the veteran’s relationship to the corporation and corporate earnings. The issue for consideration is whether the frequency and type of service performed by the veteran equates to substantially gainful employment. In this regard,

[Hoppy]

Good job Wings

[Wings]

x

x

x

SOME IDEAS . . . ~~~Wings

FACTS IN EVIDENCE TO SUPPORT CLAIM FOR TDIU

The schedular requirements of 38 CFR 4.16(a) are met. Veteran is currently service-connected for Post traumatic Stress Disorder, with a temporary 100% schedular rating. Veteran currently faces a "proposed" rating of 70% for PTSD.

VARO has stated that VAMC GAF SCORES and other medical evidence of record support at least that 70% rating percentage. Furthermore, the evidence of record will show VAMC GAF SCORES range from 35-50. Where a GAF Score of 35 is consistent for a veteran who shows, "Some impairment in reality testing or communication" and/or "Major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood e.g., depressed man avoids friend, neglects family, and is unable to work"; and where a GAF SCORE of 42 is consistent for a veteran who exibits, "Serious symptoms" and with "Serious impairment in social, occupational, or school functioning e.g., no friends, unable to keep a job"; and a GAF of 50 is consistent for a veteran with "serious impairment in social, occupational, or school functioning e.g., no friends, unable to keep a job".

The veteran has submitted to the Secretary a Notice of Disagreement concerning that "proposed rating reduction" from 100% schedular to 70% schedular for PTSD. In that NOD, the veteran contends that (using the language of that Rebuttal).

Furthermore, the VARO should look to the significance of General Counsel Precedent Decision, VAOPGCPREC 6-92, which instructs:

"The regulation in question, 38 C.F.R. § 3.343(a), provides that when a veteran has a total disability rating, not granted purely because of hospital, surgical, or home treatment, or individual unemployability, the rating will not be reduced in the absence of clear error without examination showing material improvement in physical or mental condition.

That section of 38 C.F.R. § 3.343(a), further provides: 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)."

AND, "Where the evidence shows that a veteran's condition has improved, this regulation requires the regional office rating board, before reducing the veteran's total disability rating, to consider the circumstances under which the condition has improved. The rating board is directed to consider all of the facts but in particular consider a spectrum of possibilities ranging from whether the condition improved during the normal course of everyday life or whether the condition has improved as a result of a restricted life-style such as one of prolonged rest or one otherwise precluding employment. Reduction cannot be considered if the improvement was attained while the veteran was following a regimen which generally precludes work, unless improvement is sustained (as shown by reexamination) after a period of employment".

In the Claim at Issue for TDIU, VA FORM 21-8940 IS AT EVIDENCE.

Also noteworthy is the veteran's "inferred claim" for Unemployability found in that VARO Rating Decision, dated ____; which reads, "The letter from XXXXXXX PhD, April 11, 2008, " ... relates that he is unable to work at this time due to his PTSD symptoms." There is no other evidence of record to contradict his honest assertion that he is currently unemployed due to the severity of his PTSD symptoms; and his assertion and truthful, sworn testimony is supported by all the evidence of record, including all VAMC GAF SCORES which plainly and consistently show "serious impairment in occupational functioning, unable to keep a job".

If a 100% service-connected evaluation is awarded, a claim for a total disability evaluation based on individual unemployability is moot. (See VAOPGCPREC 6-99.) Therefore, the veteran contends that his claim for TDIU should not preclude an assignment of 100% schedular rating for PTSD.

Edited June 19, 2008 by Wings

[souldeliverer]

Wings,

You are a God-send! I don't know how I can ever repay you for your help and hard work. Can I just submit to the VA the FACTS IN EVIDENCE TO SUPPORT CLAIM FOR TDIU that you sent? This seems to sum up most of the issue at hand.

I have not recieved a transcript of the official hearing yet. How do I know they even read my rebuttal and cover letter? Should I have insisted upon reading it in it's entirety at the hearing, so it would be documented in the transcript? What is the next step? I have already mailed my NOD and TDIU form. Do I now submit this letter you wrote for me? Do I go to another hearing?

Thank you so much!!!

Edited June 19, 2008 by souldeliverer