Has Anyone Seen A Rating Reduced Upon Appeal?

[broncovet]

I am considering appealing a recent rating decision and would like advice. The rating is what I expected, but I think I deserve an earlier effective date.

My question is, Could this appeal "open a can of worms" and result in a rating reduction? Has anyone had their rating reduced upon appeal, that is, has anyone wished they had not appealed and wound up loosing benefits instead of gaining them at the BVA level? (My most recent decision was a favorable DRO review) I dont want to "take chances" of a reduction, but really think I deserve an effective date 5 years earlier, based on an "informal" claim.

My "informal claim" was for depression..at the docs office. At that time I had no idea that there was such a thing as a claim for depression, however, I did tell my doc that I was depressed, and he prescribed meds for it, and told him it was related to a service connected condition. He documented this. However, I did NOT follow this up with a formal claim for depression, until more than a year later.

Also, I filed a claim for increase in 2004, which may have been shredded. I filed for "special claims handling" and, based on the most recent decision, altho they did not come right out and admit I was one of the victims of shredded documents, my decision would suggest that would be the case.

Edited March 31, 2009 by broncovet

[carlie]

bronco,

You posted,

"My "informal claim" was for depression..at the docs office.

VA - or private doc ?

At that time I had no idea that there was such a thing as a claim for depression, however, I did tell my doc that I was depressed, and he prescribed meds for it, and told him it was related to a service connected condition.

You told him it was related to a SC'd condition - only the doc can make that decision, as in providing the nexus.

He documented this. However, I did NOT follow this up with a formal claim for depression, until more than a year later."

If the VA makes a finding of an informal claim THEY are to send the claimant a form to file within a year.

jmho,

carlie

[MikeR]

So what happens if they deny a PTSD claim even though there is a diagnosis, and nexis, but you also have Depression and it is also diagnosed by the VA, can you go back and file for it? I am assuming it would not revert back to the old retro date, but start all over to the new retro.

[rentalguy1]

The DRO cannot reduce you on appeal unless it is found that the claim was granted through fraud. It can theoretically be reduced at a higher level of appeal if a new C&P is given and a reduction is warranted, but I have never read of such. If you are looking at a substantial amount of retro, I would go ahead and file the appeal.

Good luck

[carlie]

So what happens if they deny a PTSD claim even though there is a diagnosis, and nexis, but you also have Depression and it is also diagnosed by the VA, can you go back and file for it? I am assuming it would not revert back to the old retro date, but start all over to the new retro.

MikeR,

The two MH conditions would be rated combined as one and the highest percentage

should be awarded per the medical evidence.

carlie

[carlie]

From M21-1MR - Chapter 5 - Appeals - Section C

http://www.warms.vba.va.gov/M21_1MR.html

12. DRO Jurisdiction and Authority, Continued

<H5 style="MARGIN: 0in 0in 0pt; mso-list: skip">e. DRO Decisional Authority</H5>The DRO may

· amend, reverse, or modify a decision based on de novo review

· amend, reverse, or modify a decision based upon new evidence, or

· exercise single signature CUE authority.

Exceptions:

· Unless a CUE exists, the DRO cannot revise the decision in a manner that is less advantageous to the appellant than the decision under review.

· A decision in which CUE is cited requires the signature of the VSCM if the decision would

- reduce a service-connected evaluation(s), or

- sever service connection for a disability(ies).

Note: The VSCM’s signature is required on the rating even if the reduction or severance based on a CUE would not cause a reduction or termination of total benefits paid.

Reference: For more information on DRO decisional authority, see 38 CFR 3.2600.

[Philip Rogers]

If the claim is valid I'd go for it. jmo

pr