Va Changed My Claimed Items Or Ignored (Sorry If Not Right Place) Newbie

[Whirlwind27]

Any thoughts appreciated
In short;
2013 IDES C&Ps
2014 fit for duty, hit 35yrs, 14 of SOF
Ratings Letter rec. June 2015/ 100% (not P&T) due to an claim item that was overrated and will prob be reduced as their boilerplate langauge says will be reviewed in 6 months.
1. BBD (benefits at delivery) claim was Required and submitted Nov 2014. Preparing the BBD, the VSO and I filled out the claim form (to include 2013 C&P diagnoses on several items), for instance one eye diagnosis was 20% BiLat ref. VARSD, but It was ignored or removed from 2014 claim. My C%P examiner was the same on both exams.
2. Five claim items were not rated at all,not even zero, but clearly in med records. For instance, scaitica bilateral - not service related. But scaitica started in Dec 2013, and weekly transdermal Butranorphine (sp) and oxicodone 60 a mo. I cant remember this sec but I had 3 ER visits at Army Hosp in 2014. Army Pain Mgt burned Nerves - didnt work, 3 times facets blockers, Predisone injections x2, and 1- epidural. 2015 out of service and 2 epidurals this year. I won't go into symptons but pain etc keeps me from working. This is the same thing for the other 4 claimed items in various degrees.

I've looked at forums quite a while and I've not found this scenerios except for close and sorta. My first thought was Im being set up for a reduction under 100,, because they know with their omissions I'll have to fight a few years to get corrected back. "I dont know". But I know i need to be prepared. The good thing is I have all my Med records in a safety deposit box that support my claims.

I'm trying to find a new VSO (since i've moved upon retiring) but I'd like to know what experienced veterans think.
Do I file a NOD?

3. Currently my e benefits says review December, 2015, and Letter says not P&T because an item may get better.

4. Several persons, to include a Rep have said not to do anything because i'm 100%, but wait till reduced. What is your opinion?

5. Would filing a NOD or CUE on non- service connected items jeopardize my current rating?

Or do I appeal those, ask for reconsideration?

6. One more thing, but comes as result of #2 above. Can I use a diagnosis from prior C&P to file a claim? (yes it was a claimed item on second time). It seems that if the VA diagnosed me and the army treated me, it could be used to support my claim. (clarification - I've had multiple eye problems with several diagnosis and all claimed. At C&P #1, i was diagnosed with what would be auto 20%. So at this time I can only assume either the VA ignored claimed item OR the SAME C&P eye examiner didnt list it on 2nd exam. Couldnt I use the 1st C&P exam/diagnosis as basis for appeal, NOD or whatever it is i need to do? (the diagnosis is permanment- not going away)

Thanks for any insights

Edited July 1, 2015 by Whirlwind27

[Navy04]

Welcome aboard, Sorry to hear of your issues and Congrats on the 100%. Sorry to say bud but there is nothing Evil that the VA is going out of their way to impose on you. As you can read from my signature I have a ton of High Disabilities, have quite a few that I have not even filed for, yet I am only Temporary VA 100%. I was Medically Retired in Feb 2013 at 30, approved for SSDI Permanent in less than 10 weeks at 31, and VA pays my wife on the Highest Tier to take care of me, which is really hard to get approved, yet Guess What still Temporary VA. In fact I was Scheduled for Review/Reduction on all my conditions for Feb 2016, What did the VA do, decide to Review most of my Conditions in Feb 2015, and 2 more just a few weeks ago. Instead of the VA low balling me, the Re Evals back fired in their face, and all my conditions continued at High %s and in fact Migraines/TBI was increased from 30 to 50%. What I am trying to say is that if you are Being Treated by the VA Docs and you do not get better the VA can not Reduce you. Just go in there seek treatment and be honest. I go to 3 different VAs and they are all over 200 miles round trip, yet I make sure and not miss an appointment. Best piece of advice is that we should all try not to Rock the Boat, as the VA calls it, when we are already 100%. When I filed an FDC for over 8 conditions in Nov 14, BTW they were all granted except a few, the VA thought I was being ungrateful and that is when the Snowball of Re Evals started. Only you can decide what is best for you and your family. Good luck and God Bless my Friend!!!

[FormerMember]

Rock the boat? What a hoot. Read some of Berta's and my adventures in VAland. I'm 100% on Hep C alone, 40% for fibromyalgia and 10% for both tinnitus and an AO skin disease. I filed a CUE on the skin in 2010 after they zeroed it out and won it back-to 1994. I filed a CUE on not being given 100% for another AO disease. VA gave me first 40 and then 60% but not the 100% I asked for- again, back to 1994. I'm at the BVA with the judge for the full 100% now. In addition , I decided to appeal the 10% skin for 30% and got a private IMO. When they bitchslap you, get out the big stick and go after them. I have never subscribed to the idea of letting the sleeping dog lie. VA will be there eventually to see if they can reduce you anyway. It's programmed into VACOLS to do so and just a matter of time unless (or until) they declare P&T. Your spouse needs 10 years of P&T under his/her belt before they give out DIC. If you die of complications due to AO inside those ten years but were never rated for them, guess what? No DIC. Best to CYA.

As an aside, I've noticed most VSO reps shudder when you mention CUE or going after a EED. Most will say "Best not to upset the applecart, Jose. They may get mad and take it all away from you." I've been down that road. When they're wrong, they have to pay you. Sadly, no interest but what the hey. Always hold their feet to the fire. Never chieu hoi to the VA. Never. If you earned it and the medrecs support the rating, go for it. Once you start down the Casper Milquetoast road, VA knows they have you stampeded forever.

[Navy04]

Asknod gives a lot of good hope, but also remember that you better have all your Evidence and Ducks in a row, or you will end up just going round and round with the VA. I have filed 4 FDCs in the last 2 years, over 30 C&Ps, all of my High %s were Recently Re Evaluated, a year early, yet I had 90% Success. It has been one heck of a Stressful time and sure don't want to see other Vets go thru it.

[FormerMember]

Perhaps a more nuanced explanation is in order. Once you hit the magic 100% schedular in any one disease/injury, VA ceases to harass you with continued C&Ps. If, however, you have a pearl necklace of 50s, 40s 20s and 10%ers, they come after you unmercifully in an attempt to reduce you. It's what they do and they do it well. A lot of Vets don't fight it. Sometimes it's subtle. They say the reduction will not change your underlying rating. That may be true but they will be back some day soon if you do not throw down on them. I've seen Vets with a 60 or less get new C&Ps that endanger their TDIU. Vets will notice that they'll never see VA try to reduce a 0% rating...

For the record, I have never advocated cheating and I find anyone who tries it to be a scoundrel. We try to keep our heads held high in this business. One gomer makes us all look like Safeway Slip on the Floor Club members. My last CUE dustups were illegal and VA had to admit it. It took five years but now that I am cured of HCV, I have lots of time. There is no race to get everything in order for my wife before I reached room temp.

Navy 04's advice to have all the evidence in your favor is axiomatic. By rights, you shouldn't be in a predicament of having to defend a rating if it is legitimate and the IMO/nexus and medical science supports you. However, that will never stop VA from sticking their nose in under the tent. My strong advice is to always develop your most serious claim(s)-i.e. ones that will kill you- to its(their) optimum. Too many develop a long list of little ratings that serve no purpose for ratings unless or until you get over the 100%/TDIU hump and are in search of the SMC S. I have two 10% and one 0% but those are the product of using DAV and AmVets. They'd file for a hangnail even if it only netted 0%. My focus was always on the Hepatitis and AO and not just because they were big tickets. It was because they were killing me.

Keep that in mind when you begin your fight. Go for the gold. Don't be distracted by little things like hammertoe or excessive earwax buildup. If your injuries are going to put you in a wheelchair or wipe out your ability to earn $, go for it. Tinnitus is a 10% dead end but it's nice if you never get anything else. It'll sure pay the CATV bill. I do not try to instill hope. Hope and $5.32 will get you a mocha grande at Starbucks. This is far more serious. That's why I call it win or die. To try is often a preadmission of failure. Do... or do not do. Offense beasts defense every time.

[Whirlwind27]

Thank you both for your advice.

Asknod,

Unfortunately I’m in the predicament of having to defend my claims. Absolutely agree on pursuing items that are most problematic. I could understand if med records were sketchy but they’re not. The VA ignored the 3 five inch binders of objective and subjective records on items that prevent me from working and limit my quality of life. I got another epidural last week for sciatica and doctor has recommended a spinal implant stimulator. The VA said I had a med record but did not find evidence of a disability. But they saw fit to over rate a ten % item with 50 for something I haven’t seen a doctor since 2011. That’s crazy.

The first C&P for migraines correctly reflected over 10 yrs of medical records since I had meningitis. The second C&P said less than one a month, and this time in addition to records I provided a diary my neuro recommended which also included the cluster headaches that started in 2012. Right is right, and I will fight for it. I volunteered for jumping from planes and rucking 75lbs until I was 48, when a doctor said stop, no more. But that’s what we do in the military. The smaller stuff I’m not so much worried about except if it’s a 10% I deserve and it means diff 90 to 100. I didn’t know what a CUE was or that a NOD was the same as an appeal until last week. I’m very new to learning this. I just read that I can ask for a hearing on these items without doing a nod/ appeal. I also just found out I need to go to regional office to see my file, which may provide some answers. Then I plan to request a hearing either to learn why the records didn’t matter or if the file was missing info, in which case I can present what was missing. Asknod, Am I understanding, interpreting this process that I read correctly? Have you heard of anyone requesting a hearing first, before a NOD to right a wrong?

Thank you

[broncovet]

I agree with Alex, but simply restate what he said. First, forget all about worrying about reductions when you seek an increase. Those can happen whether or not you seek an increase. If the VA has evidence to reduce you they likely will, independent of whether or not you seek an increase. In short, not seeking an increase to prevent a reduction is like trying to use a bullet proof vest against a nuclear weapon: It wont help.

The VA has to rate (or reduce) using the criteria in established precedential case law, the 38 CFR, the M21, General coucil opinions, and VA fast letters.

Nowhere, in any of these, does it state anything close to:

"When ever the Veteran seeks an increase, then reduce him instead."

This is simply a method VA employees and VSO's use to lessen their work load. It works if we fall for it.

This is myth supported by some VA employees and certain VSO's who have sworn to "cooperate with VA" with no bases in regulatory procedures. I have said this before:

The VA regulations do not support basing our ratings on whether or not we have purple hair, green skin, or whether or not we have sought an increase. They have to rate using the criteria, instead.