Proposed Reduction

[texboyer]

I recently attended a C&P Exam after requesting an increase for Post Lumbar Laminectomy rating of 40%. The examiner could not access my records due to a computer glitch, and refused to review any information I brought with me. I could not perform the forward flexion exam and so she simply wrote it up as 70* (which is impossible for me to achieve). She also answered "No Response" for the question regarding whether I walk with an assistive device (I walk with a VA issued cane) and whether I had debilitating episodes (I was bed ridden for 3 months last year and not allowed to drive or go to work). This triggered a Proposal for Reduction from 40% to 10% for my lumbar condition. They tell me that I must request a hearing to prevent this reduction. I have NO idea how to respond or how to prepare for a Proposed Reduction Hearing. I assume I must request a Hearing, but how do I fight this as it is an obvious issue of a problem with the examiner. She was an NP, by the way.

[Gastone]

Don't hit the Panic Button yet!

If your VMC Medical records and Clinician notes support your request for the increase, you still have a chance of the Award.

Around mid 05/15, I had a C & P for a 02/15 FDC Secondary issue and increase of an existing SC. The C & P Dr sounded quite negative during the exam and didn't have anything other than the Rating Dept DBQ request. He said he couldn't access my VA Med Records, so he only put down my responses.

I viewed the completed DBQ the following week, loser for sure. Started thinking, NOD TIME.

Thought for sure I would get a Denial but around 08/15 I got the Secondary Rated as SC @ 0%. I was in the process of putting my NOD together, when I discovered via E-Ben 01/03/16, that my orig SC had been bumped from a 50% to 100% and an SMC (S-1). This had to be due to the Rater Reviewing my VMC Medical File. I hadn't attached any Pdf's to the FDC and it sure wasn't the result of the C&P DBQ.

So here I am 01/10/2016, Retro Deposit hit 10/07 but I haven't received the actual Award Letter from a 07/2015 Decision. Spoke with the VA 800# call back Rep 01/05/16, said a "Letter" was generated 01/03/16, to allow 10 days.

I would never have said this before but, check your E-Ben for up-dates. Just be ready to file your NOD, if needed.

Semper Fi

[broncovet]

YOu need to do these 3 things, in this order:

1  Ask to amend your records, noting the C and P exam as inadequate because of no records access:

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

end regulation quote.

2,  Nexy you need to request a hearing.

3.  At the hearing you challenge the adequacy of the exam for reasons you already gave.  

[RUREADY]

2 hours ago, texboyer said:

I recently attended a C&P Exam after requesting an increase for Post Lumbar Laminectomy rating of 40%. The examiner could not access my records due to a computer glitch, and refused to review any information I brought with me. I could not perform the forward flexion exam and so she simply wrote it up as 70* (which is impossible for me to achieve). She also answered "No Response" for the question regarding whether I walk with an assistive device (I walk with a VA issued cane) and whether I had debilitating episodes (I was bed ridden for 3 months last year and not allowed to drive or go to work). This triggered a Proposal for Reduction from 40% to 10% for my lumbar condition. They tell me that I must request a hearing to prevent this reduction. I have NO idea how to respond or how to prepare for a Proposed Reduction Hearing. I assume I must request a Hearing, but how do I fight this as it is an obvious issue of a problem with the examiner. She was an NP, by the way.

. I could not perform the forward flexion exam and so she simply wrote it up as 70* (which is impossible for me to achieve).

Where did she get those numbers if you didn't perform request the hearing first

you might could ask for another exam because of that. Higher rating for back is

60% with bedrest prescribe or its fixed in a position 60% is hard to get. You could go

to your primary care and ask could they give you a range of motion test on your back

if not allowed to get another c&p before the hearing

my doctor sent me too physical therapy for it and I summited if as evidence and won

[Buck52]

yes I agree with PUREADY & broncovet,& Gastone

Submit new evidence  from a specialist  and your pcp notes

NOD Ask for DRO Hearing...& submit the evidence and take copy's with you  in case the DRO don't have it  and you can look them face to face and show them how bad your disability is.

Also state what you have here...and about the inadequate C&P Exam

I think the C&P Examiner made a big mistake when she did not read the medical records

you had.

jmo

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

[Gastone]

When exactly was your C & P? Are you certain of the Denial? Kind of sure, don't really think you can appeal a Decision before the Rater hands it down. You did NOD the VA's proposal to Reduce your existing SC, right?

Being Pro-Active is good, "Premature" anything can be bad. What does your VSO-Rep say?

Semper Fi

[texboyer]

C&P was 19 Oct 2015. Received proposed reduction on December 17 2015. You can't NOD a proposed reduction, only ask for a hearing.