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]

Philgrenier said:

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

In 2008 the regulations changed as to pyramiding TBI and PTSD, and I cannot understand how any type of MH can be pyramided with TBI,

In a past post you mentionted you would attach that decision....did you??? I cant find it here.

Templar ...I would have cited 38 USC 5109 and 38 CFR 3.105 because I thought this was a VARO decision, but in any event you prepared a good argument on the pfd.

You posted this:

Posted 19 October 2014 - 03:31 PM

"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."

I sure appreciate the help you got from Broncovet!

Are you saying that they never had the hearing and are ready to make the decision?

In my past experience ( I had a vet here who they proposed to reduce, who was at 100% P & T and his kids were set for college that Fall under Chapter 35. We had to act fast, because their eligibility was threathened not to mention everything else the 100 % award involved..)

LONG story, we had to prove boots on the ground Vietnam.About 15 years ago.

I had many phone contacts and emails with the vet...had time in those days to do that,

and I drew him out all I could ,on Vietnam , and he finally recalled he had ONE boot on Vietnamese soil....just as good as two.

He was able to get proof of that right away ,sent that and more evidence to the VARO,and we did many other thinngs to prepare for his hearing....when they suddenly cancelled the hearing and dropped the proposed reduction idea.

WHAT a relief for this vet and his family!

I sure am hoping that is the same case here.......because I dont recall you ever got a hearing at all..but .maybe I am wrong.

So I am optimistic about that decision.It sounds like a restoration, based on the EED dates they gave.

[templar1231]

Berta,

I never did have a hearing...yet. And no indication I'm going to - it appears they're going straight to making a decision.

We'll see, I'll post the result when I get it.

[Berta]

Yes I agree, no hearing.....I am cautiously very optimistic for you.

[Scout Swimmer]

Berta, here it is.

REASONS FOR DECISION

Service connection for adjustment disorder with depressed and anxious mood; with postconcussive

syndrome (claimed as acquired psychiatric condition to include depression and

anxiety; and traumatic brain injury).

You requested reconsideration on Januaty 9, 2014 for service connection for the claimed

condition of acquired psychiatric condition to include depression and anxiety. The condition was

previously denied on a direct basis by the rating decision completed on January 6, 2014.

The St. Cloud VA Medical Center mental examination dated April 24, 2014 provided a diagnosis

for adjustment disorder with depressed and anxious mood. The examination provided the

medical opinion that it is at least as likely as not that your diagnosed psychiatric condition

is secondary to your service connected traumatic brain injury, and your migraine headaches.

The examination also stated that it is not possible to differentiate the symptoms between the

previously diagnosed post-concussive syndrome and the diagnosed adjustment disorder with

depressed and anxious mood condition. VA regulations state these two conditions must be rated

together when it is not possible to differentiate the symptoms in order to avoid pyramiding.

You were previously rated 40 percent for post concussive syndrome. The evaluation assigned

for post concussive syndrome is based upon the highest level of severity for any facet of

cognitive impairment and other residuals of traumatic brain injury (TBI) not otherwise classified

as determined on examination. Only one evaluation is assigned for all the applicable facets. A

higher evaluation is not warranted unless a higher level of severity for a facet is established on

examination. Physical and/or emotional/behavioral disabilities found on examination that are

determined to be residuals of traumatic brain injury are evaluated separately. A severity level of

2 for a facet was the highest level reported on the St. Cloud VA Medical Center traumatic brain

injury examination dated May 20, 2009.

We are combining the diagnosed post-concussive syndrome with the diagnosed adjustment

disorder with depressed and anxious mood, and evaluating this under the mental rating criteria.

We have determined this will be of greater benefit to you as this will establish the higher

evaluation. Service connection for adjustment disorder with depressed and anxious mood; with

post-concussive syndrome (claimed as acquired psychiatric condition to include depression and

anxiety; and traumatic brain injury) has been established as related to military service, effective

April 16, 2013, the date of receipt of your claim for acquired psychiatric condition to include

depression and anxiety.

[templar1231]

Ok, I've finally heard back from VA. They've indicated they're going to proceed with my hearing...any advice on how to prepare and who to bring?

[Berta]

Broncovet is correct:

"Like other NODS, you should focus on their "reasons and bases" for decision and demonstrate where that is in error.

Dont try to tell them you are sick, need the money, etc., etc...just refute their reasons and bases. Most importantly, look at the rating criteria for TBI and PTSD..."

The pdf decision states a strong reason why they proposed the reduction and it makes sense but it also states that the reduction would bring you to 70%.

If I were you I would bring a filled out TDIU form with you to the hearing and any additional medical evidence that would warrant any change in the proposed reduction of the TBI award.

Edited February 19, 2015 by Berta