Reduced Benefits

[*Bergie*]

Ok,

My neighbor who is a retired Senior Chief and Viet Nam Vet requested an increase of his SC right knee and non-service connected left knee. After his C&P exam he just received a letter telling him the VA feels his right knee is better and as a result is going to reduce his Comp from 60% down to 30%. We just turned in a 4138 requesting a hearing and scheduled an appt with his civilian ortho doc to provide documented evidence that his right knee has infact gotten worse. The C&P doctor had him straighten his leg 2-3 times and called it "repetitive movement". This is a joke and not reptitive, this is a man who cannot climb stairs without difficulty, who cannot walk more than 100meters without a cane or rest. So can anyone offer additional advice as I will be accompanying him to his hearing.

Thank you,

Bergie

[carlie]

Ok,

My neighbor who is a retired Senior Chief and Viet Nam Vet requested an increase of his SC right knee and non-service connected left knee. After his C&P exam he just received a letter telling him the VA feels his right knee is better and as a result is going to reduce his Comp from 60% down to 30%. We just turned in a 4138 requesting a hearing and scheduled an appt with his civilian ortho doc to provide documented evidence that his right knee has infact gotten worse. The C&P doctor had him straighten his leg 2-3 times and called it "repetitive movement". This is a joke and not reptitive, this is a man who cannot climb stairs without difficulty, who cannot walk more than 100meters without a cane or rest. So can anyone offer additional advice as I will be accompanying him to his hearing.

Thank you,

Bergie

He needs to get a medical opinion from his private ortho that will completely

support his current rating of 60% or higher, by VA's criteria.

jmho,

carlie

[JamesBreckenridge]

When was he granted that 60 percent? Because under the current schedule, you can't get that unless your knee not only does not bend at all (ankylosis) but is stuck in an "unfavorable" position at that.

He must have been granted under a previous version of the rating schedule... I hope that's the case, because we can't reduce you under criteria newer than you were granted under.

[broncovet]

I recommend what Katrina Eagle, a lawyer, wrote about refuting reductions. The link is here, but you will need to scroll down.

http://knol.google.com/k/jim-strickland/a-...4hm0dxfnnzs/11#

Just in case the link does not work, I will post some of it here:

Reductions and Severances

How To Challenge A VA Proposal to Reduce or Take Away A Veteran’s Monthly Compensation

Katrina J. Eagle, Attorney at Law

http://www.wildhaberlaw.com/

It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or “obtain and, or maintain gainful employment” because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be “permanent and total”). Thus, the VA orders re examinations in order to assess the current severity of the veteran’s service-connected disability.

Here are the key VA Rules and Regulations relevant to this issue:

a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), © (2007).

b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran’s monthly disability payments. See 38 CFR 3.655© (2007).

c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran’s disability.

d. But, the VA should not schedule a reexams if any of the following situations exist: The disability is static; Symptoms have persisted w/o material improvement for 5 years or more; A disability from disease is permanent and not likely to improve; The veteran is 55 y.o. or more; or The rating assigned is the minimum rating or a reduction in a disability rating would not affect total combined rating. See 38 CFR § 3.327(:D(2) (2007).

e. Any rating evaluation that has “stabilized”, i.e., that it has “continued for a long period of time (5 yrs or more) at the same level” may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),© (2007).

Note: “Sustained improvement” must be based on all evidence of record; i.e., a change in rating cannot be based on single examination “in isolation of rest of the record”.

So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA’s “proposal to reduce” the veteran’s disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision.

The Process by Which the VA Will Attempt to Reduce a Veteran’s Service-Connected Disability Rating:

VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103(:)(2), 3.105(e) (2007). VA must provide the veteran 60 days from the date of the notice by which to “submit evidence for purpose of showing that adverse action should not be taken.” BUT, VA need not give notice if the actual amount of compensation paid is not reduced as a result of proposed rating reduction.

In same notice, VA must inform veteran about right to a Predetermination Hearing. If the veteran wants one, he or she must request it within 30 days of notice. See 38 CFR § 3.105(i) (2007).

Predetermination hearing must be conducted by VA personnel NOT involved in initial proposed rating reduction. Whenever possible, request a predetermination hearing because it will delay the VA’s implementation of the reduction by some 2-3 months, thereby buying the veteran some time to obtain evidence to support his opposition to the proposed reduction.

Under the auspices of VA’s duty to assist, it must advise the veteran about the types of evidence – medical and nonmedical – that the veteran should submit to avoid a reduction in the disability rating. If the VA failed to properly notify the veteran, write a letter to VARO and ask for clarification and specificity.

If the veteran fails to respond and, or submit evidence within 60 days, then the VA issues final rating decision with notice that benefits will be reduced in 60 days.

Ways to challenge a VA proposal to reduce a veteran’s disability rating:

a) Review the most recent VA medical evaluation – was it “full and complete”? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a).

B) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated” AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007).

c) Review the VA’s historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951(B) (2007). Such a continuous rating is often referred to as a “protected rating.” This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE.

Beware of the misleading language in the VA regulation! The VA can reduce a “protected rating”, just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more.

Ways to challenge a VA proposal to reduce a veteran’s TOTAL disability evaluation:

a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, “material improvement” must also be shown “under the ordinary conditions of life, i.e., while working or actively seeking work.” So, VA rationale must include review and comparison of the disability’s past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code’s Schedule of Ratings.

b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in “substantially gainful employment” because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka “TDIU” or “IU”). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless “clear and convincing evidence” establishes that the veteran is capable of “actual employability.” See 38 CFR § 3.343© (2007).

Ways to challenge a VA proposal to reduce a veteran’s UNPROTECTED disability rating:

Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka “unprotected cases) are subject to several VA rules and regs with which VA must comply:

a. Any proposed reduction must be based upon review of entire history of veteran’s disability; b. The VA must determine whether there has been an actual change in the disability; c. Any improvement must include the veteran’s ability to function under the ordinary conditions of life and work; and, d. Exam reports reflecting any such change must be based on thorough examinations. See 38 CFR §§ 4.1, 4.2, 4.13 (2007).

Consider these arguments when challenging a reduction in an unprotected case:

a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based. b. The VA must specify the medical evidence relied upon for proof of sustained improvement. c. The VA must explain how it determined with reasonable certainty that improvement of the veteran’s medical condition(s) will be maintained under the ordinary conditions of life. d. Thus, 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. See Manual M21-1MR, Part III, subpart iv, 8.D.12(B) 38 CFR §§ 4.1, 4.2, 4.13 (2007).

Regarding the VA’s severance of service-connected compensation, these are the two common circumstances:

a) Due to Fraud by Claimant –

B) The process and the due process protections are identical to when VA proposes a disability rating reduction. c) Service-connected and DIC benefits (aka “widow benefits") are protected from severance after 10 years UNLESS fraud or lack of required length or character of service is discovered.

d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection.

e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It’s worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered. f)Also, the VA need not prove C&UE in cases where service connection was “clearly illegal.”

Katrina’s tips for veterans facing a VA proposal to reduce a service-connected disability rating:

1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic! 2. Review VA proposals for findings that amount to “unsubstantiated medical conclusions” 3. Whenever possible, get a medical opinion from a treating physician that will counter a VA medical evaluation 4. Emphasize fact that veteran’s disability has not improved such that employment capabilities have improved; thus, reduction is improper.

[*Bergie*]

When was he granted that 60 percent? Because under the current schedule, you can't get that unless your knee not only does not bend at all (ankylosis) but is stuck in an "unfavorable" position at that.

He must have been granted under a previous version of the rating schedule... I hope that's the case, because we can't reduce you under criteria newer than you were granted under.

The rating was in 2003 after he had his right total knee replaced. His first surgery was in 1969, and after 20 plus years he required a new knee. The other thing they site is that he has not been seen by a doctor since his surgery. However, he is very nervous with doctors and would rather live in pain than see a doctor.

Thanks,

Bergie

[*Bergie*]

I recommend what Katrina Eagle, a lawyer, wrote about refuting reductions. The link is here, but you will need to scroll down.

http://knol.google.com/k/jim-strickland/a-...4hm0dxfnnzs/11#

Just in case the link does not work, I will post some of it here:

Reductions and Severances

How To Challenge A VA Proposal to Reduce or Take Away A Veteran's Monthly Compensation

Katrina J. Eagle, Attorney at Law

http://www.wildhaberlaw.com/

It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or "obtain and, or maintain gainful employment" because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be "permanent and total"). Thus, the VA orders re examinations in order to assess the current severity of the veteran's service-connected disability.

Here are the key VA Rules and Regulations relevant to this issue:

a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), © (2007).

b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran's monthly disability payments. See 38 CFR 3.655© (2007).

c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran's disability.

d. But, the VA should not schedule a reexams if any of the following situations exist: The disability is static; Symptoms have persisted w/o material improvement for 5 years or more; A disability from disease is permanent and not likely to improve; The veteran is 55 y.o. or more; or The rating assigned is the minimum rating or a reduction in a disability rating would not affect total combined rating. See 38 CFR § 3.327( :D (2) (2007).

e. Any rating evaluation that has "stabilized", i.e., that it has "continued for a long period of time (5 yrs or more) at the same level" may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),© (2007).

Note: "Sustained improvement" must be based on all evidence of record; i.e., a change in rating cannot be based on single examination "in isolation of rest of the record".

So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA's "proposal to reduce" the veteran's disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision.

The Process by Which the VA Will Attempt to Reduce a Veteran's Service-Connected Disability Rating:

VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103( :) (2), 3.105(e) (2007). VA must provide the veteran 60 days from the date of the notice by which to "submit evidence for purpose of showing that adverse action should not be taken." BUT, VA need not give notice if the actual amount of compensation paid is not reduced as a result of proposed rating reduction.

In same notice, VA must inform veteran about right to a Predetermination Hearing. If the veteran wants one, he or she must request it within 30 days of notice. See 38 CFR § 3.105(i) (2007).

Predetermination hearing must be conducted by VA personnel NOT involved in initial proposed rating reduction. Whenever possible, request a predetermination hearing because it will delay the VA's implementation of the reduction by some 2-3 months, thereby buying the veteran some time to obtain evidence to support his opposition to the proposed reduction.

Under the auspices of VA's duty to assist, it must advise the veteran about the types of evidence – medical and nonmedical – that the veteran should submit to avoid a reduction in the disability rating. If the VA failed to properly notify the veteran, write a letter to VARO and ask for clarification and specificity.

If the veteran fails to respond and, or submit evidence within 60 days, then the VA issues final rating decision with notice that benefits will be reduced in 60 days.

Ways to challenge a VA proposal to reduce a veteran's disability rating:

a) Review the most recent VA medical evaluation – was it "full and complete"? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a).

B) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record "clearly warrants the conclusion that sustained improvement has been demonstrated" AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007).

c) Review the VA's historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951( B) (2007). Such a continuous rating is often referred to as a "protected rating." This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE.

Beware of the misleading language in the VA regulation! The VA can reduce a "protected rating", just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more.

Ways to challenge a VA proposal to reduce a veteran's TOTAL disability evaluation:

a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, "material improvement" must also be shown "under the ordinary conditions of life, i.e., while working or actively seeking work." So, VA rationale must include review and comparison of the disability's past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code's Schedule of Ratings.

b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in "substantially gainful employment" because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka "TDIU" or "IU"). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless "clear and convincing evidence" establishes that the veteran is capable of "actual employability." See 38 CFR § 3.343© (2007).

Ways to challenge a VA proposal to reduce a veteran's UNPROTECTED disability rating:

Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka "unprotected cases) are subject to several VA rules and regs with which VA must comply:

a. Any proposed reduction must be based upon review of entire history of veteran's disability; b. The VA must determine whether there has been an actual change in the disability; c. Any improvement must include the veteran's ability to function under the ordinary conditions of life and work; and, d. Exam reports reflecting any such change must be based on thorough examinations. See 38 CFR §§ 4.1, 4.2, 4.13 (2007).

Consider these arguments when challenging a reduction in an unprotected case:

a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based. b. The VA must specify the medical evidence relied upon for proof of sustained improvement. c. The VA must explain how it determined with reasonable certainty that improvement of the veteran's medical condition(s) will be maintained under the ordinary conditions of life. d. Thus, 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. See Manual M21-1MR, Part III, subpart iv, 8.D.12( B) 38 CFR §§ 4.1, 4.2, 4.13 (2007).

Regarding the VA's severance of service-connected compensation, these are the two common circumstances:

a) Due to Fraud by Claimant –

B) The process and the due process protections are identical to when VA proposes a disability rating reduction. c) Service-connected and DIC benefits (aka "widow benefits") are protected from severance after 10 years UNLESS fraud or lack of required length or character of service is discovered.

d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection.

e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It's worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered. f)Also, the VA need not prove C&UE in cases where service connection was "clearly illegal."

Katrina's tips for veterans facing a VA proposal to reduce a service-connected disability rating:

1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic! 2. Review VA proposals for findings that amount to "unsubstantiated medical conclusions" 3. Whenever possible, get a medical opinion from a treating physician that will counter a VA medical evaluation 4. Emphasize fact that veteran's disability has not improved such that employment capabilities have improved; thus, reduction is improper.

Bronco,

Man this is great stuff, it will really help. I owe you big time!!!

Thank you so much,

Bergie :)

[Vync]

That's an awesome write up and it has me wondering.

What would happen if medication is given to treat the condition and then the condition stabilizes? A couple of years later, the VA comes back and says you're ok and they slash benefits. They stop the medicine and the condition comes back.

How do you think they would handle that situation?