Extraschedular Consideration

[Berta]

Please read the info in my Macklem V Shinseki post above

[broncovet]

Berta, Im not quite understanding what you mean, here.

"Extraschedular Consideration" normally applies to Veterans seeking IU who do not meet the minimum 60/70 percent guidelines for IU, unless its me who is not getting this.

Its unclear what Extraschedular Consideration, given my above defination, has to do with Macklem. Maybe he was seeking IU, and because he did not meet the requirements, he was seeking EXTRASchedular consideration for IU, and that is how VA got around paying him?

[Berta]

Gee, I did that to save time but the post didn't make sense

Broncovet, .....what I meant is this part of the Macklem post

"What I still call Extraschedular consideration,which has been traditional done by VACO, has changed.

When the Fast letters were invalidated by the court, as I understand the VBM, the ROs C & P services made the 'extraschedular decision at that point....Machlem is cited in this regard in the VBM. page 960 I think

As of printing/publishing time of the 2014 VBM , the ROs had not implemented any scenario at all, as to what happened to VA claimants, who fell under the Fast letters above, prior to those letters being invalidated.

The biggest problem with this is,in my opinion, a VACO extraschedular favorable decision is binding on the RO.

The VACO ( VHA ,VBA) can read.

but handing 'extraschedular consideration' issues over the the C & P examiners just adds more denials to the Hamster wheel."

I have email in to NVLSP, on something else and if I get chance, will discuss this too with them....

I think it is page 960 in the 2014 Edition of the VBM.

What I see here is that, VA Central Office extraschedular opinions, and all sorts of other types of medical opinions, that would come from doctors with more knowledge than the VAMC and C & P docs,

when the BVA requested this type of opinion for an appeal,

will no longer come from these expert doctors at or affiliated with VACO.

So any vet at the BVA, to include those with a FTCA/1151 issue, might never get a valid VACO opinion , and just keep getting lousy C & P opinions.

Of course that would make it easier for an IMO to become very probative, but how many vets can really afford IMOs?

What the VA did to me recently is so bizarre and illegal that I believe the VAs are misinterpreting those Fast letters in the other post.Fast Letters that have been invalidted by the court....

And as the VBM said, the ROs had no plan at all to deal with those claimants affected when the Fast letters were invalidated.

I presented this question to both the regional and general counsel yesterday:

How can an opinion requested by a VARO from a local medical entity.(like a C & P doc) over rule an established medical opinion from VA Central?

Of course, if the credentials of the C & P person outweighed the VACO doc...that might be a logical reason...but VAMCS usually dont have experts doing C & Ps. And the VA had a chance to over rule a VACO medical opinion, in my case, 18 years ago.

They chose to do it however last week.

This is so bizarre it is funny.

In 1998 I was awarded 1151 DIC due to wrongful death.

The FTCA award was the evidence they used.

The medical opinion for my 1151 HBP current claim,is the same medical opinion that involved the HBP in the FTCA settlement.

There was much more evidence as well, primarly my medical lay evidence and some more peer review reports that supported my charges.

VA could not get out of this wrongful death case.

In the 1151 DIC 1998 award, the VA had made no further attempts to deny my claim.

They had done that twice before (1995 to 1997)and I knocked down the C & P doctor's medical reports that went against the claim.

The OGC and VACO doctors, not only know medical issues in and out, the OGC knows VA case law and regs far better then the ROs.

Now a VA medical 'review' was done.2 weeks ago because I contacted Ms. Hickey ..I have no idea what sort of qualifications this 'review' person had.

Every single medical statement they made in the denial is medically wrong, as they attempted to over rule the past VACO opinion.

The VACO doctor's credentials are superb.She still works for VA Central.

My case is very bizarre, and I know the outcome can affect others....

I sure am not going to put up with some bogus medical opinion , (I have had plenty of them already)

when ,if this happens to others, they will suddenly find a VA doctor can REVERSE a past VA doctor's opinion

and we could see plenty of sudden PROPOSED REDUCTIONS coming to veteran's.

VA Central exrtraschedular favorable opinions in the past that caused awards of BVA cases, (usually TDIU)

may be ripe enough for the VAROs to tamper with now.

Whether the vet's award letter came from the BVA or the VARO.

Since they can obtain a VA opinion that goes against the established VACO favorable opinion.

....the results of my VACO situation will hopefully clarify this more.

I have two other separate awards for Direct SC death DIC.

I am not worried at all about my DIC. I am not worried at all about my claims...

I am worried about how long this additional f---ing battle will take...

a battle that did not have to occur.

But does anyone else here get the point ..........

that my decision ( unless they singled me out)

reflects.........

that VA can get a VA 'doctor' to go against another VA doctor anytime they want,

regardless of how superb the other VA doctor's qualifications are ,

in order to 'deny 'a claim....that had already been awarded.....by proposing to reduce.what the veteran or survivor claimant ( in my case) was awarded long ago.

I don't even think the 'medical' opinion I got even came from a VA doctor, or nurse, or PA...

it is too bizarre...

And they didn't even weigh the evidence for Relative Equipoise.If they did the claim would have been grated.I shaped that into a CUE against them.

BOD regs dont allow CUE...M21-1MR is a different story.

"

Edited March 21, 2015 by Berta

[broncovet]

Ok, Thanks, Berta.

Im gonna try to summarize what you said, because I want to make sure Im getting it. In no small part, this is probably because I do not have the new VBM and you do:

1. A couple of fast letters have become invalid because of Macklem, concerning extraschedular IU (EIU).

2. VACO no longer does EIU, they are done in the VARO now instead. You suggest this is bad for Vets, apparently, because there was a good, knowledgeable doc in VACO that did EIU, and there is no such good informed doc at the RO level handling EIU.

3. You think this may open up a can of worms because VA can now hire a doc who differs with a Vets old medical opinion, and, therefore, get him reduced.

The idea of getting reduced is a nighmare for many Vets. There are several "protections" of ratings and SC, when most VSO's say there is only one: The 20 year protection. Well, there are at least 2 more protections:

A. The 10 year protection for Service connection is similar to the 20 year, but does not protect a reduction in rating, only service connection.

B. The 5 year "stabalized" protection, which seems to be about the same thing as "P and T" protection. Its hard for VA to declare you are P and T in one decision, and then say you got better in another, as that would indicate the decisions are in conflict with themselves.

Katrina Eagle did a fine article on reductions about 4 years ago. I wish that was still up, as it is excellent. (If anyone knows where it is, by all means post the link) Katrina pointed out in 5year (or P and T), the 10 year, or the 20 year, the VA will have to prove the Vets condition "actually improved under ordinary conditions of life" (working, because ordinary people work).

Hypothetical example: So, sure the Vet had a few good days, and a few too many drinks and was able to go to a rodeo and ride a bull. However, it took him a year to recover from being jarred around, and he never did walk right after being thrown off that bull (assuming this Vet was P and T, or disabled for at least 5 years). Further, and importantly, he was not "working" riding that bull, he was playing, and he still can not work, so no reduction for bull riding. Most of us have done stupid things, and that does not mean we have improved under ordinary conditions of life because a little too much alcohol made us think we were 25 again.

However, if this Vet had just gotten rated, especially a "temp" rating, then riding a bull 6 months after his knee surgury, and then back to work Monday Morning as a fitness coach and doing squats, probably means he is pretty much healed up. This sems to be a good example of "protected ratings".

Edited March 21, 2015 by broncovet

[Berta]

This vet had a protected rating that was reduced by his perpetration of a fraud:

"Here, service connection for right eye disability was established in a March 1970 rating decision that assigned a 30 percent evaluation from August 1969. A December 1974 rating decision increased the evaluation to 100 percent effective October 1974, based on October 1974 VA examination findings indicating that the Veteran had only light perception in the right eye. The 100 percent evaluation was in effect from October 1974 until May 2001, thus for more than 20 years. "

http://www.va.gov/vetapp13/Files2/1316804.txt

Protected ratings however are usually never reduced. And very little fraud occurs in VA claims.

This next case seems to reflect better what I mean:


"
8. Whether there was CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating."

"10. The April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.105(a) (2011)."

"The claim for CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating is denied. "
http://www.va.gov/vetapp12/Files1/1200717.txt

"Reviewing the April 2003 RO rating decision at issue, the RO at that time clearly found that a higher 30 percent evaluation was warranted based on the fact that the Veteran had undergone partial hysterectomy in which her uterus was removed, but not the ovaries. On this basis, the RO assigned a higher 30 percent evaluation under Diagnostic Code 7618, effective March 3, 2003, the date of the Veteran's claim for increase. (Incidentally, a few years later, the RO upon its own favorable determination of prior CUE assigned an earlier effective date of September 1, 1980 for the award of a higher 30 percent evaluation, pursuant to an August 2005 rating decision. This however is not a material fact to the instant claim.) "

On remand
http://www.va.gov/vetapp12/Files1/1200717.txt

Protected ratings regulations are discussed here at the YUKU VBN:
http://vets.yuku.com/reply/358105/Reduction-in-rating#.VQ17r-HRacs

I guess I have VAOLA paranoia because I don't put it past them to consider reducing any protected rating,if they think they can get away with it.

[free_spirit_etc]

A lot of this is over my head --at least at the moment.

Berta,

I am still struggling with how they can even order another medical opinion in your case. It seems like a fishing expedition to me.

[broncovet]

Free Spirit:

Dont feel bad about this "going over your head". Berta has at least as much knowledge as most attorney's, when it comes to VA law, so she can sometimes go over anyone's head. I always appreciate her posts, but, I sometimes have to look up abbreviations or words: DIC, EAP, 1151 claim,

VAOLA. Ok, that is one Berta made up, and its a good one. Its an acronym between "VA and Crapola" VAOLA. Most of us who have dealt with VA very long understand the Kra## that VA puts us through..you know, losing our evidence, not reading our evidence, delay, denial, the list goes on and on and on.

When I read Berta or Asknod's posts, I often have to look up words..and this is especially true with ASK NOD. I do it because learing new words helps keep my mind sharp and has a preventive affect on Alzheimers. One study even suggested brushing your teeth with your left hand (if right handed) forces your brain to take new paths and has a preventive effect of Alzheimers. I have Partzheimers...Alz "part" of the time. LOL