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?

[Stretch]

Try reading this.

T-4 VA Errors in Claims for Increase 3.2011.pdf

[templar1231]

Thanks for the advice so far, please see below what I plan to send through my VSO as a response and let me know any critique or suggestion:

Dear Sir/Madam:

I have received your letter dated . In that letter you have advised me that you propose to reduce my benefits.

I disagree with your assessment to eliminate a separate 40 percent evaluation for TBI. This action isn’t warranted due to such documented symptoms as “subjective complaints of balance problems and vision changes”. Although the doctor did not feel that these symptoms warranted a higher facet level than 0, it’s not the symptoms but their effects on my work and everyday life that really are the impairment.

As a consequence of these documented residuals, the problems/symptoms compound to negatively impact my life. The balance problems I have cause dizziness and give me problems while reading that interfere with my effectiveness at work and home (causing me to take breaks). My vision changes (light sensitivity and blurred vision) cause me to strain while performing computer work and hastens fatigue.

I did not point this error out (during the 1 year appeal period) until now since I felt my evaluation was “accurate enough” and I didn’t feel it necessary to merely get one TBI facet marked in line with reality. With the pending reduction, my VSO advised me to address this in order to get everything sorted out.

I request that you take no action to reduce or modify my monthly benefit amount at this time.
I request a de novo review of my file and this proposed action by a Decision Review Officer.

I guess I could send this and then wait for their response or send this and get an IMO or IME. I've been trying to get ahold of the neuro that did my TBI neuropsych to discuss. Suggestions please?

[broncovet]

I humbly suggest two words at the hearing: "Prove CUE".

The burden is on VA to prove Cue. Rememeber, VA is trying to reduce you, you already have your rating.

Remember this, and dont let the VA pull the wool over your eyes on CUE:

1. It has to be "undebateable" error.

2. The error has to manifestly change the outcome, that is, it must be outcome determinative error. "Harmless" errors do not qualify and do not raise to the level of Cue.

3. It has to be based on evidence available "at the time of the original decision". "New evidence" is not CUE. It also has to apply to the regulations at that time. If rules and regulations changed then that was not Clear, Unmistakable Error.

Ask the VA to show you how its "undebatable" as you have pointed out. Point out that, since your are debating it, that it can not be "undebateable." Remember, a Veteran does not have to meet ALL the rating criteria to qualify for a rating...the VA rates Veterans on the "average" impairment. Ask them to show you proof that your other criteria was NOT considered by the original rating representative when he rated your percentage. I would further argue that it is the VA's burden to prove CUE..not yours to defend it. YOu already have evidence you qualified for the 70 percent, now the VA has changed their mind that you no longer qualify, and you are entitlted to a "reasons and bases" as to why (they think) you no longer meet the criteria because of clear unmistakble error. Ask them to define exactly how that would be an error, and why it was not caught in the first place..after all, are these decisions not reviewed by the supervisor?

I would also plead that the decision became final and can not be revoked. Finality of decisions has been upheld by the courts on numerous occassions.

Edited October 21, 2014 by broncovet

[templar1231]

A huge thanks to Broncovet for getting me headed in the right direction for my response letter and assisting with editing. I'll let the group know what kind of response I get.

See my letter attached.

Response to VA CUE.pdf

[Scout Swimmer]

Yup. I was rated 40% TBI in 2009. In 2013 I submitted a claim for Depression and Anxiety. It was approved but they cited pyramiding and erased my 40% TBI.

Would have been 100% scheduler too!

I asked my VSO how could a MH condition be grouped with a physical injury. His response " it's pretty standard".

So I gave up.

[templar1231]

Pending Decision approval on E-Benefits...we'll see. Interestingly, my AB8 has a date of Dec 1, 2014 for effective date of 80% combined rating. I believe it was Jan 1, 2014 before, is this just a coincidence with the COLA increase perhaps?