Re-evaluation Set For December 1st.. I Need Help Please

[CHARLES]

I was in the military from 1991 to 2004. I received a medical discharge while I was in the military and the military awarded me 10%. However, 3 months later the VA rewarded me 100% disabled and unemployable. How one can award me 10 % and the other 100% is beyond me, but that is a whole other topic… I have been 100 % for the past 2 years. The diagnosis is Major Depressive Disorder, Panic Disorder, and mild Agoraphobia.

They called me back to the VA on December 1st 2006 for a re-evaluation. I guess I am concerned that they will try to take away my benefits or reduce my 100 percent rating. Even a 10 percent reduction is a significant amount of money every month from 100 percent to 90 percent. I have three children so I am concerned.

I have been going to the VA for the past two years on a regular basis I see a psychiatrist and psychologist. They have me on Paxil and Klonipan for medication. I have tried to work two times in the past two years and each time I did not last very long because of my medical condition, and this is noted in my record.. and if I am not mistaken all the most recent notes from both the doctors I see regularly at the VA say that I should not be working yet, I think!! But here are some of the questions I have.

Is it easy for them to reduce me from 100%. Is it my word and the doctor’s word and that’s it?

Will me working two jobs in the past year, although for only a very short period and each of them I quit due to medical reasons that I am diagnosed with by the VA for disability, will this help me or hurt me?

Is their anything I can do to help prepare myself for the visit?

When I go for the re evaluation, will he notify as soon as it is over of his descion or are their others involved higher up , how long till I will know?

After this ruling, do I have to go in every two years or at some time does it become permanent?

[Vike17]

Charles,

Mental disorders are evaluated in steps of 0%, 10%, 30%, 50%, 70%, and 100%, so a reduction in your case would probably mean 70%. The VA isn't suppose to reduce veterans with mental conditions in drastic fashion, meaning from let's say 100% to 10% in one reduction.

Are you receiving 100% due to the rating schedule (meaning 100% schedular) or are you receiving 70% but being paid at the 100% rate due to Idividual Unemployability (IU)? If you're are rated 100% schedular, the VA may reduce your benefit to 70% if some improvement has been noted in your medical records, but still pay you the 100% rate because of unemployability; especially if your records indicate that you're unable to work becuase of your condition. You did state that you worked twice for a short period of time in the past, so maybe that may be the route the VA will take.

If you're are rated 70% with IU, then the VA cannot reduce your IU award unless there is clear evidence that you have maintained employment. In your case you have not, so I wouldn't really worry about it too much.

In either case, I wouldn't really worry too much about it. In both cases you would still be paid at he 100% rate.

The doctor doing the evaluation does not make the rating decision. The doctor examines you and then writes his/her report and submits it to your regional office. At your regional office a Rating Veteran Service Representative (RVSR) will make the final determination and assign a rating percentage to your case. As far as how long it takes is hard to tell. it all depends on each indivual regional office and how backlogged they are. It could take as little as 30 days or it could take as long as 6 months.

As far as being called in every couple of years for a re-exam, that is a judgement call on the RVSR.

Hope this helps!

Vike 17

[john999]

Charles

This may be your chance to get the VA to assign a permanent and total rating. After you are P&T you won't be called in for exams anymore. This may be why they are bringing you in because the VA realizes that if they do not act soon to reduce you then you should be assigned P&T status. What ever decision the VA makes you should probably ask to be made P&T. It is probably your youth that is prompting them to re-examine you. If I had a private doctor I would get them to write me a report saying I am permanently and totally disabled by my mental disorder and present this to the C&P doctor. Age not supposed to have anything to do with it but if you were over 55 you would probably be P&T.

[CHARLES]

When I recieved my medical papers from the VA two years ago after my initial evaluation, it said 100 percent disabled and unemployable, I did not see anything that said 70 percent, however I never seen anything that said schedular, it said you are 100 percent disbaled and unemployable but they expect it to improve in the future....Yes I did work two jobs over the past two years but none of them were more than two months and eaxh of them I was either let go and quit because of my disability.

Mental disorders are evaluated in steps of 0%, 10%, 30%, 50%, 70%, and 100%, so a reduction in your case would probably mean 70%. The VA isn't suppose to reduce veterans with mental conditions in drastic fashion, meaning from let's say 100% to 10% in one reduction.

Are you receiving 100% due to the rating schedule (meaning 100% schedular) or are you receiving 70% but being paid at the 100% rate due to Idividual Unemployability (IU)? If you're are rated 100% schedular, the VA may reduce your benefit to 70% if some improvement has been noted in your medical records, but still pay you the 100% rate because of unemployability; especially if your records indicate that you're unable to work becuase of your condition. You did state that you worked twice for a short period of time in the past, so maybe that may be the route the VA will take.

If you're are rated 70% with IU, then the VA cannot reduce your IU award unless there is clear evidence that you have maintained employment. In your case you have not, so I wouldn't really worry about it too much.

In either case, I wouldn't really worry too much about it. In both cases you would still be paid at he 100% rate.

The doctor doing the evaluation does not make the rating decision. The doctor examines you and then writes his/her report and submits it to your regional office. At your regional office a Rating Veteran Service Representative (RVSR) will make the final determination and assign a rating percentage to your case. As far as how long it takes is hard to tell. it all depends on each indivual regional office and how backlogged they are. It could take as little as 30 days or it could take as long as 6 months.

As far as being called in every couple of years for a re-exam, that is a judgement call on the RVSR.

Hope this helps!

Vike 17

[CHARLES]

If I ask to be made P and T would they not think I was trying to manipulate the system or get over? I would have thought it would be better for me to play dumb... Same thing with a private doctor, why would I go to a private doctor if the VA makes readily available to me all the doctors I need to see because I am 100 percent? Can they just keep calling me back in every two years and never make me P&T ?

This may be your chance to get the VA to assign a permanent and total rating. After you are P&T you won't be called in for exams anymore. This may be why they are bringing you in because the VA realizes that if they do not act soon to reduce you then you should be assigned P&T status. What ever decision the VA makes you should probably ask to be made P&T. It is probably your youth that is prompting them to re-examine you. If I had a private doctor I would get them to write me a report saying I am permanently and totally disabled by my mental disorder and present this to the C&P doctor. Age not supposed to have anything to do with it but if you were over 55 you would probably be P&T.

[jessejames]

Charles; call 800-827-1000 and ask the Counselor what the system shows your rating to be. Be specific on whether it is 100% schedular or if it is a lesser rating with assigned rating on Individual Unemployability. If it is Unemployability, then the burden of proof will be on them that you ARE gainfully employed, not whether they BELIEVE you CAN be gainfully employed. At any rate, the information below should help your concerns. If I were you and I did not have concrete absolute evidence showing my condition was permanent, I would wait a couple more years before filing for permanent....if I understand correctly that you have been paid 100% for only 2 years. Usually after 4-5 years you should be able to get a permanent rating or earlier IF you have concrete proof from Doctors to back you up.

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Veterans Benefits Administration Circular 21-94-2

Department of Veterans Affairs Change 2

Washington, D.C. 20420 February 4, 1997

Fernando Giusti Bravo, et al.,

Plaintiffs,

v.

U.S. Department of Veterans Affairs, et al.,

Defendants

Civ. No. 87-0590 (D.P.R.) (CC)

1. Purpose: The Plaintiffs' counsel, National Veterans Legal Services Project (NVLSP), has expressed concern that national adjudication standards which must, by agreement, be applied during the special settlement review and /or appeal process in these cases are not clearly outlined. Accordingly, this change is being prepared to include information concerning application of statutes, regulations, general counsel opinions, COVA decisions and other nationwide departmental guidelines in connection with this special settlement review. This change is intended to emphasize that rating specialists and hearing officers must take particular care to ensure that 38 CFR 3.343(a) and 3.344(a) and © are properly applied in reviewing these cases and that each decision fully discusses these regulations. It is essential that no reduction be made in an evaluation that has been in effect for five years or more without an examination showing material improvement in the physical or mental condition, and evidence of record that clearly supports a conclusion that sustained improvement has been demonstrated. It is also important to note recent Court cases addressing the issue of reduction in ratings. Specifically, see Ternus v. Brown, 6 Vet. App 370, 376 (1994) (clear and unmistakable error was found in RO's failure to apply 38 CFR 3.343 in reducing a total disability rating assigned on a schedular basis); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992) (reduction of a total schedular rating will not be made absent showing of material improvement); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); Karnas v. Derwinski, 1 Vet. App. 308, 310-11 (1991) (total disability rating in existence for five or more years cannot be reduced upon any one examination) and Olson v. Brown, 5 Vet. App. 430 (1993), (reduction of a 100% rating based on individual unemployability is prohibited unless "actual employability is established by clear and convincing evidence.")

2. Circular 21-94-2, Change 1, dated October 6, 1994 is changed as follows:

Pages 3 and 4: Delete the current paragraph 9b and insert revised paragraph 9b, attached.

"b. Nationwide Guidelines to be Used. Participating rating specialists from selected ROs throughout the country will review the evidence in each file relating to the veteran's NP condition and will apply statutes, regulations, general counsel opinions, COVA decisions, and other nationwide departmental guidelines, to determine whether the evaluation for the veteran's NP condition should be confirmed and continued, increased, or reduced from the date of the mass review reduction to the present. (Appendices A and B to this circular, although not all inclusive, are convenience copies of previously issued documents containing informationabout Court decisions.) Provisions of 38 C.F.R. 3.343 and 3.344 must be carefully considered and applied in all cases, and the decision document must fully and adequately discuss application of these regulations to the facts in that case.

(1). The regulation at 38 CFR 3.343(a) provides that a total disability rating 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 and that consideration must be given to whether there is improvement "under the ordinary conditions of life." With regard to a total evaluation assigned because of individual unemployability, 38 CFR 3.343©, as interpreted by the Court of Veterans Appeals in Olson v. Brown, 5 Vet. App. 430 (1993),

prohibits reduction in a rating due to IU unless "actual employability is established by clear and convincing evidence."

(2). 38 CFR 3.344(a) specifies that if a rating evaluation has been in effect for five or more years, that evaluation may not be reduced based on an examination less full and complete than the examination on which payments were authorized or continued. This regulation further states that ratings on account of diseases subject to temporary or episodic improvement will not be reduced based on any one examination unless all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated and it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life."

Pages 9 and10: Delete the current paragraph 12b and insert revised paragraph 12b, attached.

"b. Timely Appeals. Any notice of disagreement received on a special settlement review decision will be processed in accordance with current procedures by the regional office which retains jurisdiction of the claims folder. If a notice of disagreement is filed within one year of the date of notification of the special settlement review determination, process the appeal and provide all appellate and procedural rights under applicable law. All decision makers, including rating specialists and hearing officers, will adjudicate appeals in accordance with statutes, regulations, COVA decisions, general counsel opinions and other nationwide agency guidelines. Specific care must be taken to ensure that provisions of 38 C.F.R. 3.343 and 3.344 are carefully considered and applied. The decision document must fully and adequately discuss application of these regulations to the facts in that case.

(1). The regulation at 38 CFR 3.343(a) provides that a total disability rating that is 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 and that consideration must be given to whether there is improvement "under the ordinary conditions of life." With regard to a total evaluation assigned because of individual unemployability, 38 CFR 3.343©, as interpreted by the Court of Veterans Appeals in Olson v. Brown, 5 Vet. App. 430 (1993), prohibits reduction in a rating due to IU unless "actual employability is established by clear and convincing evidence."

(2). 38 CFR 3.344(a) specifies that if a rating evaluation has been in effect for five or more years, that evaluation may not be reduced based on an examination less full and complete than the examination on which payments were authorized or continued. This paragraph further states that ratings on account of diseases subject to temporary or episodic improvement will not be reduced based on any one examination unless all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated and it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.

(3). The settlement agreement does not preclude personnel from the San Juan RO from participating in the appeal peocess. The San Juan RO has the additional responsibility of maintaining a tickler system for appeal cases under their jurisdiction. This tickler system has already been established."

3. Updated references: In Change 1 to this Circular, we appended for ready reference as Appendix A, Summary of Significant Holdings of the United States Court of Veterans Appeals, Second Edition, issued by C&P Service in February 1994. We are updating the Appendix to substitute the Third Edition of the summary dated February, 1996. This edition contains references to additional Court decisions that are pertinent to application of 38 CFR 3.343 and 3.344.

Pages Ai through A47: Remove these pages and insert Appendix A, Third Edition, attached.

4. Inquiries: Refer to paragraph 14 of this circular prior to initiating an inquiry. Questions concerning these changes may be referred via E-mail to Mail VBA 213B, or by calling Lorna Fox of the Procedures Staff at (202) 273-7223.

Stephen L. Lemons

Acting Under Secretary for Benefits

Distribution: CO: 2901

SS (213C) FLD: VBAFS, l each (Reproduce and distribute

based on RPC 2068, plus VBC and AR, l each)

EX: ASO, l each

Edited November 27, 2006 by jessejames (see edit history)

[CHARLES]

Jesse

I just spoke to the VA and they said I am 100 percent schedular and that this is just a routine follow up that was actually schedulled at the time of my first rating. However, she did also say that it is very possible they may rate me permament when I go to this appointment. However, i never believe anything they tell me when I talk to them. Because here is the funny thing I called two minutes previously and spoke to a rep and he said the system said I am 100 percent pewrmament and thier is no future exam.. So I called back and got in touch with the VA office in pttsburgh which is the regional office I am regfistered at and thats when she told me the above. So anyway I am apparently 100 percent permament but have a routine followup.

[jessejames]

Charles; It sounds like you have everything in order by keeping up with treatments etc, also by showing you have tried to start back to work but could not hold gainful employment. I would make sure the C&P doctor KNOWS all this and I would tell him that it seems to you that with the records and what you have been told by your doctors that you feel the condition is permanent and you will not be able to return to work. It all depends on how the C&P doctor writes his opinion, so I would not overdo it (I think you mentioned this) but I would try to show him how hard it is to exist now without having the stress of working and that you have tried to go back to work with now success. Hope for the best, we are pulling for you!