Va Reduction In Compensation For Als

[fifty5coop]

My brother is rated 100% disability through the VA and is receiving compensation for his service-connected ALS. His diagnosis was done by a neuro at Henry Ford hospital and concurred with by the Detroit, Michigan VA. April of this year he moved from Michigan to Tucson, AZ to be nearer to me. We got him enrolled at the Tucson VA and he is now receiving all his care with them. He had to be re-evaluated at the VA here in Tucson and just received his re-evaluation letter from the VA which states that there was an "error" in his original eval and they are reducing his monthly compensation by over $300. Something to do with the loss of use of his left arm which they claim he doesn't have now. They are taking away any vehicle adaptation $ also. The Michigan PVA rep said that reductions never happen so we are very surprised at this turn of events here in Arizona. I am contacting his PVA rep Tuesday to find out how to appeal. Has anyone here on this forum ever had a "reduction" in their VA compensation? I hope this is not a pre-cursor of bad things to come with the VA...so far, we've been very satisfied with their care. We hope we didn't make a mistake by switching his medical care completely over to the VA? <BR clear=all>

[fifty5coop]

Thanks for the great advice, it seems I've got lot's more research to do on the appeals process. I'm contacting my brother's PVA rep Tuesday. Hopefully I will have a copy of the VA letter by then, my brother just received it yesterday and I haven't had the chance to view it yet. He has bulbar-onset ALS and can't communicate very well. Great statement regarding how ALS affects body functions like a switch, we'll have a neuro document that fact for the RO. Thanks for the attorney referral also.

I would use this group: Bergmann and Moore.

The reason I asked how long is the fact that there are certain laws regarding length of service connection, For example if he was connected in 2010 but his effective date was 2005 then they VA cannot reduce after 1 exam. It is called protection. 10 years has more in depth rules and 20 years makes it totally protected. (the only thing that can be reduced or severed is claims based on Fraud at that point.

One living with ALS knows that different body functions are like a switch, Some days they work, others they dont. You should get a Neurologist to explain that in writing and send it to the RO as evidence. I would also write a 21-4138 delaying any proposed action until this is sorted out. Contact your congress critter also.

Sounds like this RO has too much time on t heir hands and need some more claims to work on.

J

[fifty5coop]

I'm not sure what an "S" rating is? I have yet to view the VA re-eval letter since I'm away from Tucson at the current time.

Welcome to Hadit. Rather than guess you need to find out exactly what happened. I suspect he lost a S rating.

[john999]

"S" is the SMC rating you get if you are housebound.

[fifty5coop]

There is SO much to learn about all this! If it were not the holiday weekend, I could have my brother fax me the VA decision to reduce his benefits but I'll have to wait until Tuesday. (I'm currently out of town, away from Tucson). I DO recall my brother reading something to me about a "clear and unmistakeable error"...can someone tell me what that means? I did some research on this site and found a reference to "Sect. 10.1403 of 38 C.F.R" but have no idea where to find that info?

"S" is the SMC rating you get if you are housebound.

[cooter]

I copied this post created by "Pete992" that will help you

Clear and Unmistakable Error (CUE)

Introduction

This topic contains general information on CUE per 38 CFR 3.105(a), including

· the definition of the term clear and unmistakable error

· the provisions of 38 CFR 3.105(a)

· the determination requirements

· identifying a CUE

· handling allegations of CUE

· determining a case of CUE

· handling decisions made by Rating Veterans Service Representatives (RVSRs)

· applying the benefit-of-the-doubt rule

· revising prior decisions, and

· approval of ratings prepared under 38 CFR 3.101(a).

Change Date

December 29, 2007

a. Definition: Clear and Unmistakable Error

A clear and unmistakable error (CUE) is an error that is undebatable in that a reasonable mind can only conclude that the original decision was fatally flawed at the time it was made.

b. Provisions of 38 CFR 3.105(a)

38 CFR 3.105(a) provides that if clear and unmistakable error is established in a previous rating determination, then the

· prior decision is reversed or amended, and

· effect is the same as if the corrected decision had been made on the date of the reversed decision.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

c. Determination Requirements

A CUE determination must be based on the record and the law that existed at the time of the prior decision.

In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim.

Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.

d. Identifying a CUE

A CUE exists if

· there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

· Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

· VA overlooked material facts of record, or

· VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA's failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

· CUE, see 38 CFR 3.105(a)

· potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and

· CUEs based on VA's constructive notice of medical records, see

- VAOPGCPREC 12-95, and

- M21-1MR, Part III, Subpart iv, 1.3.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

e. Handling Allegations of CUE

Determine the precise nature of the claim when CUE is alleged. Regional offices (ROs) or the Board of Veterans' Appeals (BVA) will deny claims of CUE if the claimants do not specify the factual or legal errors at issue.

A claimant is not entitled to raise a particular claim of CUE again once there has been a final decision denying that same CUE claim.

If the CUE alleged is different from a CUE issue previously rejected, a rating is needed to determine whether or not a CUE was made on the new issue.

f. Determining a Case of CUE

When determining whether there is a CUE

· consider the

- law that existed at the time of the prior decision, and

- full record that was before the rating activity at the time of the prior decision, and

· determine whether the error would have by necessity changed the original rating decision.

Note: Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.

g. Handling Decisions Made by RVSRs

Decisions based on the judgment of the RVSR, such as the weight given to the evidence, cannot be reversed on the basis of CUE unless the decision is the result of misapplication of directives, laws, or regulations.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

h. Applying the Benefit-of-the-Doubt Rule

The benefit-of-the doubt rule of 38 U.S.C. 5107(b) is not applicable to a CUE determination since

· an error either undebatably exists, or

· there was no error within the meaning of 38 CFR 3.105(a).

Reference: For more information on applying the benefit-of-the-doubt rule, see

· Russell v. Principi, 3 Vet. App. 310 (1992)

· 38 CFR 3.105(a), and

· 38 U.S.C. 5107(b).

[sharon]

It looks as if the VA is calling Clear and Unmistakable Error (CUE) on themselve. As a part of his rating they understood that he had loss of use of his arm. After review they are saying that this was a mistake. The is no time limit (5 year exam) for them to call a CUE. The only way you can appeal is that he indead has loss of use of the arm. If he does, send in the medical evidence.