Need Help!

[jessie0054]

Need help on what to do to stop the Va from cutting my son's benefits

He is receiving benefits for service connected Polycythemia Vera. Currently at 40% for having to have monthly blood draws and phelbotomies. The Va said that since his blood levels have been in the normal range for the past 4 months ne no longer has PV. How can they determine this as there is no cure for Polycythemia Vera. One you have it you have it for life. Do they not understand the disease?? It go's in to a remission state with repeated phelboties to get the level back to a normal levels and can stay in remissions for as long as treatment continues. Without the treatment the symptoms will come back along with the risk.

What can we do?

Thanks Jessie

[jessie0054]

Within the scope of the VA ratings system, proposed reductions are always looming their ugly heads around the corner.

If a condition stabilizes, then they will propose to reduce the rating to the lowest allowed by law. In this case they will reduce it to 10 percent as they are saying is has stabilized.

What you have to do is show evidence to the contrary. Does he have any secondaries that are associated with this disease?

Remember they are not trying to sever service connection, they are trying to reduce. Does your son fall under any protection rules?

Hang in there.

J

Thanks jbasser:

I'm not sure he falls under any protection rule, where do i find these?

jessie

[carlie]

Thanks jbasser:

I'm not sure he falls under any protection rule, where do i find these?

jessie

The rules for protection are already posted within this thread !

[jbasser]

Borrowed from elsewhere.

"10/20 Year Service Connection/Ratings Protection

The 10 year mark for is for service connection.

A condition that has been service connected for 10 years can not be severed unless fraud is involved. The clock starts ticking for conditions based on the effective date(s). This does not mean compensation can't be reduced.

The 20 year mark protects ratings.

Absent fraud, disability ratings can not be reduced after they have been going 20 years. See your award letter for effective dates on each disability. Combined ratings are also protected after a 20 year period.

Example: You have been rated 50% for Condition A since 1990.

You apply for SC for 4 more conditions and VA grants them in 2007.

Because of VA granting them your new combined rating is 100% as of 2007.

Condition A is protected from severance in the year 2000 and protected from reduction in the year 2010.

The new service connected conditions would be protected from severance in 2017 and reduction in 2027.

The clock started ticking on your combined 100% in the year 2007 so it would be protected from reduction in the year 2027.

If you apply for an increase for Condition A and are bumped from 50% to 70%, the 50% number is still protected from 1990 but the new 70% would start a new clock ticking (using the dates above).

Meaning until you have held that 70% rating for 20 years, the lowest they can reduce you is back to 50% based on the fact that it was in effect for 20 years. Even if a rater plugged the wrong numbers and wrongly awarded a combined 100%, they still can't reduce.

Again, this is all assuming no fraud is involved.

You can do the math by using the effective dates on your award letters. "P&T" can be established at any time regardless of how long ratings have been held (via 100% scheduler or TDIU).

If VA plugs all of your conditions and there are no future exams scheduled,

then entitlement to Ch. 35 and ChampVA will be granted.

If VA determines that there is a chance of improvement, there will be a future exam scheduled and "P&T" will not be established."

In addition: It is based on the following fact: It goes from the effective date, not the claim awarded date.

JBasser

Edited March 15, 2011 by jbasser

[Hoppy]

In its early stages, polycythemia vera usually doesn't cause any signs or symptoms. However, as the disease progresses, you may experience:

§ Headache

§ Dizziness

§ Itchiness, especially following a warm bath or shower

§ Redness of your skin

§ Shortness of breath

§ Breathing difficulty when you lie down

§ Numbness, tingling, burning or weakness in your hands, feet, arms or legs

§ Chest pain

§ A feeling of fullness or bloating in your left upper abdomen due to an enlarged spleen

§ Fatigue

Get more medical statements addressing the continued phlebotomies. It does not appear to me the 3 month rule they are talking about addresses anything other than the suppressants. I agree with Sharon the Phlebotomies are the issue. It appears to me they misinterpreted the rating schedule.

The rating schedule goes through changes. There was a time when they used vague references to time intervals for reoccurring skin conditions such as “frequent”. Later they changed the schedule to more specific terminology such as “3 times a year”. They need to get more specific as to how often phlebotomies are required to equal a certain rating percentage. In the absence of such specific instruction the raters appear to have taken some liberties.

Also, the symptoms of the disease are not adequately addressed in the rating schedule. The symptoms above are not mentioned. They are allowed to use other rating criteria if it better explains the disabling effects of the disease. Ask them to rate the condition using conditions that take into consideration the disabling effects of the disease. The schedule they used does not address the disabling effects.

My mother died from this disease after a fifteen year battle.

[Philip Rogers]

I believe there is one more protection, the 5yr protection, which, I believe, states that after 5yrs, of a rating, the claimant cannot be rated less than the previous rating.

pr

Edited March 16, 2011 by Philip Rogers

[carlie]

I believe there is one more protection, the 5yr protection, which, I believe, states that after 5yrs, of a rating,

the claimant cannot be rated less than the previous rating.

pr

pr,

I always have a little problem finding this one but I think what I highlighted in orange

below, is what you're referring to on "the 5 yr protection" 38 CFR 3.344 ( c )

http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/38cfr3.344.pdf

§ 3.344 Stabilization of disability evaluations.

a) Examination reports indicating improvement.

Rating agencies will handle cases affected by change of medical

findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the

laws and Department of Veterans Affairs regulations governing disability compensation and pension.

It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether

the recent examination is full and complete, including all special examinations indicated as a result of general

examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports,

bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines.

Examinations less full and complete than those on which payments were authorized or continued

will not be used as a basis of reduction.

Ratings on account of diseases subject to temporary or episodic improvement,

e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic

heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any

one examination, except in those instances where all the evidence of

record clearly warrants the conclusion that sustained improvement has been demonstrated.

Ratings on account of diseases which become comparatively symptom free (findings absent) after

prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations

reflecting the results of bed rest.

Moreover, though material improvement in the physical or mental condition is clearly reflected the rating

agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained

under the ordinary conditions of life.

When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history

of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of

the preceding innocently acquired manifestations.

Rating boards encountering a change of diagnosis will exercise caution in the determination as to

whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior

diagnosis or possibly a disease entity independent of the service-connected disability.

When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only

temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases.

If doubt remains, after according due consideration to all the evidence developed by the several

items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the

former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added

the reference

‘‘Rating continued pending reexamination lll months from this date, § 3.344.’’ The rating agency

will determine on the basis of the facts in each individual case whether 18, 24

or 30 months will be allowed to elapse before the reexamination will be made.

****** © Disabilities which are likely to improve.

The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods

at the same level (5 years or more).

They do not apply to disabilities which have not become stabilized and are likely to improve.

Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant

reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18,

1993]