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cg1979

Rating Reduction from 100% to 10%

Question

Back in March of 2013 I was awarded a schedular rating of 100% for hypothyroidism, 20% for meniscal tear right knee, 20% for meniscal tear left knee, 10% tinnitus, 0% hypertension, all of which were retroactive to August 2011. In August of this year I was sent to a C&P Exam for my hypothyroidism, my condition has not improved and in fact has worsened, I explained this to the examiner but she seemed reluctant to accept it since I am on medication. A day or two after the C&P exam I sent a letter (certified mail) to the VARO stating that I have not improved and listed the symptoms that have worsened and the symptoms that have remained static. A few days ago I received a letter, dated Sept 23, that the VA is proposing a reduction from 100% to 10% for hypothyroidism because they "noted some improvement", the letter states that my combined evaluation will drop from 100% to 50%. I also received a second letter, dated Sept 23, it states that they made a decision and the hypothyroidism is rated at 10%, the effective date is left blank, it also states "your current benefit payment will continue unchanged." I was also just informed that they want to send me to another C&P exam for my knees.

I should also mention that I have not been to a VA doctor since my original award so the only evidence that they have listed on the proposal letter is the original March 2013 award and the August 2015 exam.

From my research I thought that a 100% rating required the VA to prove a material improvement under the ordinary condition of life. Their incorrect assertion of some improvement is not necessarily "material improvement" and I also do not lead a normal daily life since I do not work full time, I have my own part time business that I come and go as I please depending on my energy levels and how I feel, earning little to no income.

I thought that I had 60 days to respond to the VA with evidence regarding the proposed reduction. How can they send a proposal and decision letter on the same day? It's also odd that the decision letter states "your current benefit payment will continue unchanged." and that their is no effective date.

Currently I need to find an attorney that is a expert in VA claims as well as a doctor to verify that my condition has not improved since my previous award decision. Do you have any recommendations? or any other thoughts on this subject?

 

Edited by cg1979

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Well you probably got an idiot looking at your claims!

The  only thing I can't think of as  to the VA said they ''noted some improvement'' in your? they don't state what  the improvement is from (disability)??

 Never the less if the the C&P Examiner was reluctant  during your exam  ....  he /she would  have had to mention in his/her report'' shown some improvement''  how  else would the VA Raters know? get a copy of your ''Reluctant'' Examiner report and see what he/she reports in the last C&P about your hypothyroidism Aug 2015...He/she had to mention you shown some'' improvement''...you need to re-butte that!

You  need to go see a Private Specialist and have him/her to re-butte what this examiner mention in his/ her report.

If you have no evidence with the VA   Then use your private Dr's reports.  if you don't have any of their reports..you need to go get an IME'IMO   ASAP.

Note  I think you only have 30 days to respond to  proposal to reduce  so respond as soon as you can  and let them know  what your intentions are that you Disagree with there decision and  your gathering your evidence &  you request an additional 30 days to be able to get your evidence  because your disability has not improved and is consider static   and will not improve in your life time   but you need a Specialist Doc to state that.

This is just my Opinion

 

I'm  sure other  elder hadit members that know more about this type of disability will chime in.

 

Good Luck

 

..............Buck

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cg1979

you need to copy and pates the VA Reasons and Bases  to your proposal here on hadit preferble in this post. &   be sure and black out your name and SS Number & any personal information.

the elders can help you more if they know what they said....you possibly can make them CUE Them self!??

 

.........Buck

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For some reason I'm not able to upload files or add links. Do you need to have a certain number of posts to do either of these?

Edited by cg1979

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Go to the nearest Va Rep. office and file the paper work saying you want a DRO hearing, that you do not agree with the decision to reduce.  You have thirty days to file this, if not they are going to reduce you.

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The first thing you need to do is request a hearing, and get competent help for it.   You want to argue that your conditions do not meet the criteria for improvement, below:   

 

§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of lifei.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).
 
Also see:
3.344 Stabilization of disability evaluations.
(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.
(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.
(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.
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