traveler

weird, but worth asking

8 posts in this topic

Okay, so on 4 August I submitted my FDC

Approved 5 May 2015

80%.  Life is good :)

Today, I get a letter from the VA saying they reviewed my claim, and disagreed with the 20% I received for Hemorrhoids, that it should be 70% overall and if I want I can submit evidence to keep my rating.

So, at my C+P the nurse noted in the record loss of sphincter control, moderate leakage when doing the C+P for hemmorrhoids.  Under 7332 on CRR38 Part 4 that is 20%.

But VA review makes no note of it, stating that my hemorrhoid condition is insufficient for anything over 0%

Apparently South Dakota RO gave me the 20% for the leakage, but the VA didn't like that.

Is that because it falls under loss of sphincter control instead of hemorrhoids?  I would think that if it is noted under the C+P exam for hemmorhoids that was conducted, that it should be compensable, as it has been.  Is it normal for a completed disability to be reviewed 2-3 months after it's done?  Hell, I thought he VA was backlogged!

So, I will respond with the evidence about the leakage and hope they will give me the 10% that it would fall under which would keep my 80% total finding intact.

 

Comments?

 

 

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I don't think I understand your question.? unless you were rated 90/100%?

this is good!

Today, I get a letter from the VA saying they reviewed my claim, and disagreed with the 20% I received for Hemorrhoids, that it should be 70% overall and if I want I can submit evidence to keep my rating.

 

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They have to follow a specific procedure to reduce your benefits.  First off, they have to have evidence that your condition improved.

The RO cannot make medical decisions.  Go to your PCP and validate the finding that the C&P Nurse noted.  All you need is an acknowledgement in a medical record from any medical professional that the disability exists, and that it reflects a 20% disability under the rating schedule, and you have new evidence.

Did they tell you what evidence they have?

 

 

 

Edited by pwrslm

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The evidence is from a colonoscopy performed in 2014 where the dr. noted no sign of anal fissures, or external hemorrhoids.  Internal hemorrhoids noted.  This must be where they got the info for them to say the condition has improved.  They are calling it a "clear and uncontestable error" I believe.

In my C+P. it was over all anal issues.  I was noted by the examiner (nurse) moderate leakage from loss of sphincter control, which under CFR 38, part 4, as a 10% disability claim.

So, I will send in a copy of her report, highlighted, with my contention that at least 10% is warranted.

Is it normal for the VA to go back and review disability claims like this, or was it a review since it had just been awarded in May?

I could have my PCM out at the base take a look if that would help.

Comments please.

 

Edited by traveler

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They are calling "CUE" on you.  They called it Clear Uncontestable Error.  You need to make them prove it, the burden is on them, now. 

Remember, the decision maker is supposed to have all the evidence at his or her disposal, including previous exams.  Further, if the decision maker relied upon one exam over another, making that judgement call, it is not CUE, but a judgement call of the decision maker.  Judgement calls can not be CUE.  

If they contend that your condition resolved itself and improved, then the VA needs to go through the "reduction" procedure, inlcuding giving you 60 days notice.  

However, I will make a suggestion that may work.  Lets say you applied for other benefits that were denied, or that you have new issues to which you have not yet applied.  

Apply for them or appeal, as applicable.  Then, tell them if VA  will approve (new claim) then you will consent to this reduction.  Its just an idea and it may or may not be applicable to you.  

Edited by broncovet
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Unless the colonoscopy MD commented directly on the lack of your condition, then there is nothing there.  Sphincter control really has nothing to do with fissures or hemorrhoids.  It amounts to a weakness in muscle, which can be total or partial, as in paralysis or partial paralysis.

 

Sounds like the rater has made a medical decision.  Ask for a hearing.  When they review their evidence, they will most likely withdraw the reduction.  If not, get medical evidence ready for the hearing, anything is better than nothing, but an IMO combined with an examination will probably be best.

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