hypertension Can The Va Take P&t Away?

[dav_marine72]

Hi Everyone,

Hope everyone is well. I have a complex issue here and I'm hoping someone might have an idea as to what the VA can do after awarding P&T. To fully understand the situation I am in I need to provide some background. The following are my current service connections:

70% - Back Condition (L3-S1) post failed 2000 L3-4, L4-5 discectomy, post failed 2009 L3-S1 fusion, post spinal stimulator implant - 40% Ortho, 40% Left leg radiculopathy, 20% Right leg radiculopathy, 50% - Adjustment Disorder - Major depression, Anxiety, Panic Attacks - Secondary to severe back & leg pain, 30% - Asthma, 10% - GERD, 10% - Hypertension - Secondary to severe pain from back & legs, 10% - Right Foot - Post fracture, Pes Cavus, Severe Ankle Equinus, Arthritis, 0% - Chronic Right Testicle Pain

0% - Left Foot - Post fracture, Pes Cavus, Severe Ankle Equinus, Arthritis, 0% - Eczema, 0% - Erectile Dysfunction - SMC K - Secondary to SSRIs and large daily dose of opiates

Service connection timeline - 1995 - 2009 0% - 80%

2009 - Awarded TDIU & SSDI, 90% schedular

2011 - I return to work based on many factors. My wife gave up her career to stay home with kids once our last child was born, unable to get decent health insurance for my family, unable to get life insurance on myself for my family based on Mental Health & Back Condition SC & medications prescribed for both, went into severe depression because of losing career and started drinking alcohol heavily and abusing the opiates, mentally I could not take staying home & at the time I wasn't interested in getting help. Needless to say I return to work in severe pain. I'm able to do bare minimums and luckily the company was affording me leeway including days off, working from home, etc. However, recently the company has taken a new direction and now has issues with leeway. I'm working with HR but I honestly don't know how much longer I'm going to be able to work there. There is no way I would be able to go to work where being there physically 40 hours a week or more was required. This is based on my limitations with sitting and standing. The plan was to wait until my wife graduated from college before I stopped working but that is up in the air.

So 4 of my service connections make their way back to the RO via a joint remand from the U.S. Court and 3 others come back via BVA remands. The 4 from the Court go back to ratings from 2000. I have to go through exams for all 7 service connections for the millionth time. I told the examiner that I was working. They pulled in my SS records which would show I was working. So of course the RO finds no increases or changes in my ratings from before 2009. Which means no back pay and probably years more of appealing. However, prior to the remands I was 10% for lower extremity weakness instead of being rated for each leg after the 2002 VA law change that allows ortho and neuro ratings to be separate if they are more advantageous to the Vet. This was one of the bigger appeals based on the severity of my leg pain and weakness. So they deny the 7 increases or initial ratings prior to 2009 but they award me 40% for my left leg (Neurological) and 20% for my right leg (Neurological) from 07/2013. Even with these new ratings I still combine to 90% (92).

However, they award me what they are calling a permanent 100% disability evaluation for my service connected disabilities effective 07/2013. They also stated no exams will be scheduled in the future for your permanent and total disabilities. Then they included the elusive Basic eligibility to Dependents Education Assistance is established from 07/2013. They stated the permanent & total award was based on the new awards for my legs. Now here comes the million dollar question. If they decide to take TDIU away prior to me getting these other appeals panned out which will hopefully knock me up to 100% schedular what about P&T? I know they could take the money back for 100% - 90% but what happens with P&T?

I know someone will probably say you should have never gone back to work and I've heard it 100 times. I did what I needed to do and it's done. So only helpful replies please. I can't go back in time. Thanks in advance if anyone can shed any light on this possible situation I may face.

[Vync]

Okay, sounds like you're safe. As long as you did the right thing you should be okay. If they come asking for the money back, you should request a waiver. They may still leave you at 100% & P&T, ya never know w/them. jmo

pr

If it doesn't work out and they deny a waiver, ask if they could let you pay back whatever in installments. It could be worth a shot.

[FormerMember]

Pertinent things you need to know:

A rating based on fraud is never protected. I'm not implying yours is. This is a generalized statement.

Working while on TDIU is okay if it is within the parameters Broncovet mentioned above with the addition to being a "family business" where it might be perceived as a "make work" job for a family member.

If there is no measurable improvement over five years the rating is stabilized and essentially protected.

If the rating is over ten years old, it is completely protected and impervious to reduction (absent fraud).

VA is often behind and takes a while to catch up when you are doing something wrong. However, they are inexorable. If you do not have the P&T rating, you are always subject to "reinspection" to determine if the disease/injury has improved subject to the strictures of a protected rating (38 CFR 3.957).

Now, because you returned to work so closely following the IU rating, VA will inevitably scrutinize it with an eye towards reducing it. They will attempt to prove fraud. Be prepared. Because your ratings picture is still in flux, expect a rude surprise. VA will attempt to utilize the work info as a lever to lowball your remanded ratings from the Court as well as the BVA. Their rationale will be germane, too. You worked so just exactly what does that say? You are not as disabled as you claim to be. I make no judgements here other than to point out what they will look at.

I foresee a rocky road ahead with some rude surprises and a wealth of new appeals for denied increases and/or reductions. Remember, a reduction that does not reduce your monetary award is legal and does not need a 60 day evidentiary development nor a hearing (3.105(e)). The various scenarios associated with that are numerous. VA will argue that if you are capable of work (and working) and still on IU, you are in a precarious position. One last observation. Your status of your claim is still in flux-. i.e. it is not final. It is still being promulgated judging from what you have described. Any time you have two different adjudicative bodies remanding to the AOJ for rerating and clarification, you are a far cry from a stabilized rating. VA can, and may, still argue that your P&T was CUE due to incomplete information and the judicial posture being in flux and unclear.

Vets regularly find out that what they read into the regulations and statutes is at variance with how VA interprets it. Clarification often comes after 5-10 years of litigation, appeals and JMRs. It ain't over until the AOJ sings. Your Regional Office is merely clearing its throat and preparing to sing yet again.

Edited August 5, 2013 by asknod

[JR Reihs]

The VA will go along with the SSDI 12 month program with IU........As far as your New ratings on the lower extremities, could it be the a bi-lateral factor put you into the 100% range? The VA makes mistakes more often than not, it could be a typo on the rating of IU.

[dav_marine72]

Thanks Phillip I'll do that if need be. Asknod - I fully understand what you are saying and I appreciate you being candid. Nothing would surprise me with the VA. I'll just continue to fight as I have for the last 18 years. It would be nice one day to just be done though. The mind can only take so much.

@JR - You may be right. Some of the language made it sound like that was the case. I come up with 93 not 94.5 but who knows how they are calculating. They actually denied me for a compensatable rating for HBP on this rating. Prior to making it's way back to the RO the BVA awarded me 10% for HBP. Then for my back they talked up the 20% they gave me for both legs based on neurological findings but then when I got the rating it was actually 40% Left and 20% Right. LOL. The ratings decisions should come with a decoder so it's spelled out in plain english :)

[carlie]

The ratings decisions should come with a decoder so it's spelled out in plain english :)

There will not be a decoder included - it will be written in regular vacrapola language,

so just post it here if you need any explanation : - )

[dav_marine72]

Thanks Carlie. I guess what I am talking about is some of the ways they don't answer questions that they should be. Something I do have a question about. Based on both my legs being rated 40% and 20% respectively how does the bi-lateral factor weigh in? Normally you would combine the two and then add 10% to the number before combining with any other service connections. However because it's part of my back the RO is saying I am combined 70% for my back. That being 40% Ortho, and the 40% and 20% neurological for the legs. So does the bi-lateral factor get followed and then combined with the 40% for the back? Either way it leaves me 1 or 2 points below 95 but I was curious how it's applied in this situation. Thanks in advance.