hypertension Rating Reduction from 100% to 10%

[cg1979]

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 September 28, 2015 by cg1979

[USMC_VET]

Ok brother i think this is going to be a loss but give me a minute, sorry about being a downer.  I wrote about this recently...http://howtoapplyvabenefits.com/2015/09/05/taking-medication-doesnt-reduce-your-va-benefits/

Basically though in JONES v. SHINSEKI they CAVC found (and this makes it precedent for the VA for current regs, this precedent is null if regulations are changed...)

“Thus, to the extent that the Court did not explicitly hold in Otero-Castro that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria, it does so today. This ensures that all similarly structured DC’s (diagnostic Codes) are interpreted and operate in the same manner so that diagnostic criteria are applied consistently. Therefore, as DC 7319 is silent as to the effects of medication, the Board erred in denying entitlement to a higher disability rating based on the relief provided by the appellant’s anti-acid (sic) medication.”

In laymen terms, if your DC (Diagnostic Code that your claim is evaluated under, example “headaches” can be under 8100 which is “migraines) does not specifically state anything regarding medication and how it makes you better or more able to function, etc. then it CANNOT BE CONSIDERED when rating you.

For you, make sure this is exactly what your claim is listed as and the decision is listed as, the 38 CFR lists this under the DC for Hyperthyroidism...

7900   Hyperthyroidism
Thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or astrointestinal symptoms	100
Emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure	60
Tachycardia, tremor, and increased pulse pressure or blood pressure	30
Tachycardia, which may be intermittent, and tremor, or; continuous medication required for control	10
Note (1): If disease of the heart is the predominant finding, evaluate as hyperthyroid heart disease (DC 7008) if doing so would result in a higher evaluation than using the criteria above.
Note (2): If ophthalmopathy is the sole finding, evaluate as field vision, impairment of (DC 6080); diplopia (DC 6090); or impairment of central visual acuity (DC 6061-6079).

For Hyperthyroidism if medication is needed for control then it is in fact 10%.

However if the medication is not helping at all, if symptoms are worsening a case could be higher.  This is Jones v Shinseki Grey area.  I would consult a good lawyer, however i will say that they will not hear your case until you have lost the reduction, that is what they all told me.  they can only represent you for a % of the retro.  You get no retro for a reduction win.

Your victory or defeat will hinge not on whether you are medicated, you are, but how effective that medication is.  Personally I would go and get a IME or Two IME's from board certified specialists in this area and get them to say that the medications are currently not efectively treating the disease and X,Y,Z symptoms are currently manifesting despite medications.

 

[USMC_VET]

as said above, file the NOD and request a NEW C&P and  DRO HEARING .  DO THAT NOW.

[Buck52]

I would get new medical evidence from a specialist if they give you the time..if not then yes NOD & Ask for DRO Hearing.

but in some cases a veteran may be so disable he can't travel or for other reasons.

The VA has to take that into consideration

 

jmo

 

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

[USMC_VET]

Personally I would do this.

1) File NOD and write in that....

I formally disagree with the proposal to reduce and request a DRO HEARING and a new Compensation and Pension Examination be conducted based on new evidence that I will be submitting on behalf of my claim.  I request that the DRO HEARING be conducted at my nearest VAMC located at ________.

You don't need to write a novel for a NOD all you really need to do is to file a NOD thats it, however I would make sure you request a HEARING and a new C&P, dont ask for a Review, this is supposed to happen automatically once a NOD is filed anyways so requesting that is useless and redundant.

2) Go and find a specialist in this field (endocrinology) and makes sure they are board certified and have a good CV.  you can try http://www.imenet.com and also call hospitals in the local area to see if someone might do it pro bono if they are vet friendly.  Get a IME, in this case i dont think its a "this will really help" but a "without it you will lose."

Jones v. Shinseki is not in your favor for this since for your DC (diagnostic code) and how it reads in the 38 cfr it states if you are on continuous medication you will be rated at 10%.  As i mentioned above your case will hinge on the medications inability to treat the disease or symptoms associated with the disease and that it HASNT PROVIDED RELIEF.  I dont know your case so i dont know if in your VA records if you have been going in and stating that "im feeling better" "It seems to be working" etc when talking about how the medication is.  What you need from your IME is to state the following.

a) X symptoms were present prior to medication

b) Y medication(s) were prescribed

c) X symptoms are still present and seemingly unaffected by Y medications and in fact have gotten worse.  Basically your medications arent working.

 

If you can prove via a IME that yes i am on medications but they are not helping at all, that your symptoms are still evident and affecting your ABILITY TO FUNCTION UNDER ORDINARY CONDITIONS OF DAILY LIFE then you have a shot at not being reduced, or at least not reduced as much.

[broncovet]

Whoa, HOSS!  YOu want to ask for a "reduction hearing" not a DRO hearing.  You dont file a NOD with a "proposal to reduce".  Its just a proposal, with the required sixty day notice, but you must do that quickly.   Dont file a NOD on a Proposal to reduce, DO file a request for hearing on the proposal to reduce.  

[USMC_VET]

I understand that a NOD is supposed to be for decision and not proposals however when my proposal to reduce was sent out i requested all those things and they were put on the books and i had a DRO hearing for the proposal to reduce.  I ended up not even having to attend as they decided to not do the reduction and asked that i drop my requests for a new C&P and DRO hearing. 

Your notification requesting a personal hearing and disagreement with the proposal is the same regardless of the paperwork you write it one.  so yes you can write your request on a statement in support of claim.  either will work, there is not official paperwork to request a personal hearing.  Either way request a hearing and a new C&P to buy time to get your IME

Edited September 29, 2015 by USMC_VET