How Should I Handle? Admin Review Reduction

[templar1231]

Last year, my claims were approved and I received a combined evaluation of 80% due to (PTSD - 50%, TBI - 40%, Migraines - 30%, Tinnitus - 10%). Recently, I received a letter stating that they had made a clear and unmistakable error and will reduce the TBI to 0% and my overall will go to 70% after an Admin Review.

I understand their reasoning since they feel the symptoms are overlapping and they can't apply my TBI facet levels that are higher than 0 towards TBI since they've already supported the 50% evaluation for PTSD. Where I disagree (potentially) is that I have other residuals that aren't "psychological" and are attributable to my other evaluations (e.g. Migraines).

The items/residuals that might still apply are subjective complaints of balance problems and vision changes (TBI residuals) that I don't think the doctor evaluated correctly at a 0 severity level. I have blurred vision, balance problems and hypersensitivity to light that do interfere with work, daily living, etc. I wasn't worried before when I got my evaluation because I thought what I had received was fair...but now they're attempting to reduce.

My VSO suggested I show the letter to my Mental Health doctor and see their opinion (and see if they'd like to write up documented opinion for me) and then try to request a hearing or denial.

Any suggestions?

[Berta]

If this is a proposed reduction the letter should have given a time frame in which to request a hearing.Then you can gather

ASAP any medical documentation that proves them wrong.

Did your rep suggest asking for a hearing?

[Berta]

As I read the letter, it appears they are giving you no appeal rights on this.

Is there anymore to this letter?

Did VA give any citation on their CUE as binding and not appealable?

I suggest you google this part of M21-1MR.



M21-MR, Part III ,subpartIV, Chapter 2,Section B

I was prevented from pasting info from it here.

That letter seems wrong.....you should have appeal rights.

"2. The June 2005 rating decision that granted service connection for progressive degenerative disc disease and degenerative joint disease of the lumbar spine and assigned a 30 percent disability rating contained CUE.

3. The Veteran was notified of the proposed reductions at his latest address of record, furnished detailed reasons, provided 30 days to request a hearing, and given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level."
and:
"Rating Reduction

As described above, the Board finds that the RO correctly determined that there was CUE in the June 2005 and March 2009 rating decisions. This finding resulted in the Veteran's disability ratings being reduced.

Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify a veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. A veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e).

In this case, the proper procedures were followed for implementing the reductions. The RO proposed the reduction in an April 2010 rating decision that was mailed to the Veteran that same month. It contained all material facts and reasons for the reduction. He was told in the accompanying letter that he had 60 days to present additional evidence showing that his compensation should continue at the then-present level. He was told that he had a right to a hearing, provided that it was requested within 30 days from the date of the notice. The Veteran did not request a hearing, and the final rating action was issued in July 2010, with the reductions to be effective October 1, 2010, which was more than 60 days after the date of the notice of the proposed reduction. Therefore, there was compliance with all requisite procedural matters.

Accordingly, the Board concludes that the RO was correct in finding CUE in the June 2005 and March 2009 rating decisions and properly reduced the Veteran's ratings."

http://www.va.gov/vetapp14/Files4/1433307.txt

This vet lost his appeal but my point is, didnt they give you any appeal rights at all?

Or has too much time passed on that to ask for a hearing?

[templar1231]

Berta, yes they did give me 30 days to request a hearing (my VSO suggested I do the hearing) and 60 days to provide additional evidence supporting my case. I have until the 24th of Oct for the hearing.

[Berta]

GOOD! will the VSO org have someone there too?

We have many posts here on preparing for a hearing.

It is always good to have someone with you to hold your evidence files for you and have a list of them so that you dont have to fumble yourself through the files.If VA alklows you to bring someone or maybe this is what the VSO could do for you.

[templar1231]

Not sure about who'll be going, I am having a hard time getting seen by a VA doctor to verify my residuals and provide documentation. Is it worthwhile to get that from my physician outside the VA? If so, do they need to be a specialist and what exactly should they document (eg a certain form?).

I feel like if it can be shown I have a higher facet level for the subjective symptoms (blurred vision, balance, and hypersensitivity to light, etc) than was recorded in my C&P, then their decision should change, correct?

[Berta]

"Is it worthwhile to get that from my physician outside the VA? If so, do they need to be a specialist and what exactly should they document (eg a certain form?)."

Yes that can always be worthwhile, and definitely do that , if the VA has proposed a reduction.

They should be a specialist in the field of disability or have some expertise in that field, that outweighs the VA doc .

(If a nurse or PA does a C & P, a real private doctor can almost always outweigh them).

The full criteria for an IMO is here in our IMO forum.

The VA is familiar with this criteria and will took for it's key points whenever they get an IMO in support of a claim.