Why Can' T The Va Follow The Rules

[Jim MAC]

Ok

I was rated at 100 percent backdated from Jan 08 thru Feb 1st 09 No problem with that. Here is where I get mad in my Statement of case it said I would be 100 percent intil Feb 1st 09 ok no problem there. Then what do you ask is the problem? In my statement of case it said that i was to be rexamined after 6 months guess what no exmation. This is the same VA office that left me at 0 percent for my skin cancer for 4 years saying I was cured. Now 5 operations latter I am rated at 30 percent for disfigurment but we all know 80 plus 30 does not = 90 in VA math. but 50 plus 30 plus 30 plus 10 plus 10 plus 10 plus 10 = 80 No wonder I can not help my 5 year old with her math homework from kindergarden

My question and I know that I am rambling is can they cut my disabilty without a follow up to make sure I am cured? I mean there own regs say a mandatory follow up at the VA

Thanks all

Jim

PS I found out I was back to 80 percent by calling the 1800 you are screwd if you think we will give you the truth number

Edited February 3, 2009 by Jim MAC

[Jim MAC]

"I found out I was back to 80 percent by calling the 1800"

they could be reading the screen wrong- in any event there has to be significant medical improvement in regards to any proposed reduction rating.

"This is the same VA office that left me at 0 percent for my skin cancer for 4 years saying I was cured. Now 5 operations latter I am rated at 30 percent for disfigurment"

GEEZ- that does not sound right at all-

Did you appeal their last decision regarding the "0" %?

I bet this happens more than we know. A vet gets a rating and then the disability progresses with time but only when they re-open their claim can that generate a better rating.

VA also can give Staged ratings to show a progression of disabling factors.

I dont see many staged rating awards.

This recent BVA decision shows how they work.It looks as though the veteran himself asked for the staged ratings.

http://www.va.gov/vetapp08/files4/0827689.txt

Berta

I applead the o percent with a NOD they went back to the third operation in January of 2008 and paid me Temp 100 percent rateing for a little over a year. I received that descion in Dec 2008 going to file a appeal today I beleive they screwd me out of a little over a 1 year reto. While my NOD was in had 3 more operations and was raised to the temp 100 percent. Just mad all I want is to be sure I am 100 percent cured before they adujst my rateing here is the reg they sent me. Remember my last operation was on january 25.

7818 Malignant skin neoplasms (other than malignant melanoma):

Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802,

7803, 7804, or7805), or impairment of function.

Note: If a skin malignancy requires therapy that is comparable to that used for

systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more

extensive than to the skin, or surgery more extensive than wide local excision,

a 100-percent evaluation will be assigned from the date of onset of treatment,

and will continue, with a mandatory VA examination six months following

the completion of such antineoplastic treatment, and any change in evaluation

based upon that or any subsequent examination will be subject to the

provisions of §3.105(e) of this chapter. If there has been no local recurrence

or metastasis, evaluation will then be made on residuals. If treatment is

confined to the skin, the provisions for a 100-percent evaluation do not

apply.

[purple]

JimMac-

I tend to play "devil's advocate" on here alot. You said they (the evil VA) told you up front your 100% rating was temporary and would be ending Feb 09. So this was no surprise to you. OK.

The thing that has you most upset is that they haven't scheduled you for an exam.

Would a C&P exam actually look for more cancer?

Perhaps you just haven't gotten the letter yet (as it's only the beginning of Feb)?

What did your last biopsy show? Did it show clean borders so is the VA basing it on that and expecting you to schedule your own exam with your Doc? (perhaps a mis-understanding in the letter).

Just some other things to consider.....

[Jim MAC]

JimMac-

I tend to play "devil's advocate" on here alot. You said they (the evil VA) told you up front your 100% rating was temporary and would be ending Feb 09. So this was no surprise to you. OK.

The thing that has you most upset is that they haven't scheduled you for an exam.

Would a C&P exam actually look for more cancer?

Perhaps you just haven't gotten the letter yet (as it's only the beginning of Feb)?

What did your last biopsy show? Did it show clean borders so is the VA basing it on that and expecting you to schedule your own exam with your Doc? (perhaps a mis-understanding in the letter).

Just some other things to consider.....

Perple no problem

Thats why i am upset they showed have given me another Biopsey the reg clearly states I am reuired a mandatory examantion after 6 months. Tried calling the VAMC to make one myself can;t get thru the phones. Give me my exam and I biopsey make sure I am cured the cut it.

Jim

[spike]

Jim Mac,

Were you hospitalized for any period of time when you obtained your 100% because it sounds to me you were rated under 38 CFR 4.30 Convalescent Ratings but more specfically your 6 months sounds like subsection b. #2 of this section....but I am not sure with the information you provided or if it falls under 4.29 Ratings for service connected disabilities requiring hospital treatment or observation...... I've put both here (however if this is the case I would still apply for the I/U let me know if you want that regulation as well....

§ 4.29 Ratings for service-connected disabilities requiring hospital treatment or observation.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days.

(a) Subject to the provisions of paragraphs (d), (e), and (f) of this section this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. A temporary release which is approved by an attending Department of Veterans Affairs physician as part of the treatment plan will not be considered an absence.

(1) An authorized absence in excess of 4 days which begins during the first 21 days of hospitalization will be regarded as the equivalent of hospital discharge effective the first day of such authorized absence. An authorized absence of 4 days or less which results in a total of more than 8 days of authorized absence during the first 21 days of hospitalization will be regarded as the equivalent of hospital discharge effective the ninth day of authorized absence.

(2) Following a period of hospitalization in excess of 21 days, an authorized absence in excess of 14 days or a third consecutive authorized absence of 14 days will be regarded as the equivalent of hospital discharge and will interrupt hospitalization effective on the last day of the month in which either the authorized absence in excess of 14 days or the third 14 day period begins, except where there is a finding that convalescence is required as provided by paragraph (e) or (f) of this section. The termination of these total ratings will not be subject to §3.105(e) of this chapter.

(;) Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order.

© The assignment of a total disability rating on the basis of hospital treatment or observation will not preclude the assignment of a total disability rating otherwise in order under other provisions of the rating schedule, and consideration will be given to the propriety of such a rating in all instances and to the propriety of its continuance after discharge. Particular attention, with a view to proper rating under the rating schedule, is to be given to the claims of veterans discharged from hospital, regardless of length of hospitalization, with indications on the final summary of expected confinement to bed or house, or to inability to work with requirement of frequent care of physician or nurse at home.

(d) On these total ratings Department of Veterans Affairs regulations governing effective dates for increased benefits will control.

(e) The total hospital rating if convalescence is required may be continued for periods of 1, 2, or 3 months in addition to the period provided in paragraph (a) of this section.

(f) Extension of periods of 1, 2 or 3 months beyond the initial 3 months may be made upon approval of the Veterans Service Center Manager.

(g) Meritorious claims of veterans who are discharged from the hospital with less than the required number of days but need post-hospital care and a prolonged period of convalescence will be referred to the Director, Compensation and Pension Service, under §3.321(:P(1) of this chapter.

§ 4.30 Convalescent ratings.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to §3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section.

(a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in:

(1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989.)

(2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.)

(3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to §3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physcial examination will be scheduled prior to the end of the total rating period.

( A total rating under this section will require full justification on the rating sheet and may be extended as follows:

(1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section.

(2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Veterans Service Center Manager.

[spike]

Being rated at the 100% rate due to being hospitalized for surgeries or the like is basically a temporary increase to subsidize the loss of income due to the fact that you are being hospitalized and unable to work during which time your having surgery and recovering. But here you go as per the reg(s). However, when you are no longer hospitalized and per your recovery you would fall under this statement in the regulations below......

When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section.

It sounds like the VA found that the evidence was adequate to assign a schedular evaluation, so while a physical examination was scheduled it was not needed to terminate the total rating.

If this helps good, if not let me know...but this SOUNDS like your case...but I am not sure....and I've had a long week so I am exhausted and might be missing something.....

[Commander Bob]

Guys

I really did not mind the reduction if I am cancer free thats the way its supposed to be. I just want them to follow there own rules. Give me a appt give me another biopsey let me know I have no cancer let me have piece of mind. John I am still working I do not know how much longer I can due it vecause of my SC back and neck I want to work at least 2 more years and be debt free.

Jim

Hi "Jim MAC", ... I am scheduled for my six month PET scan for tonsil cancer this Friday. Peace of mind is paramount for me too. I would hope that you press your primary care doctor to order the tests for you. Call again and again, if you have to. As you know, we have to be our own best advocate. Is there someone else at the VAMC you can get in touch with to help get you an appointment for the tests you need? Good luck, and best wishes.

Edited February 8, 2009 by Commander Bob 92-93