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Sgt. Wilky

Need Help On RFE C&P Exams

Question

Hello Everyone,

 In July of 2015 I won an 8+ year battle with the VA at the BVA. Today I received a phone call from the Cheyenne VA telling me they needed to schedule a C&P exam regarding three (out of the 8 ) claims. My first appointment is on the 18th. I had no idea this was coming and it felt like a broadside on the VA's part. Until I researched it today, I didn't know what a RFE was, and now I'm even more confused one what the VA is trying to accomplish here, so any insight would be helpful.

 The issue that is currently being re-looked at is: "Upper and Lower Back Pain as Due to an Undiagnosed (RFE)". I don't have the decision in front of me as I am at work, and I'll need to go home and dig it out. The judge at the BVA stated that he was granting this issue with the same granting of both my lower right and lower left extremities. Those two issues will be re-evaluated as well. Each of these three issues will be re-evaluated in the future, with the first one being next week. All three are currently at 10% each.

 So here's the kicker...from my understanding, the 10 year protections kick in, in July of 2018, a little more than a month and a half away. If I appeal any decision to lower these before this date, this means the VA will have to move at lightning speed, and I have 60 days to appeal, so I don't understand what the VA is trying to do, except maybe comply with the BVA court's ruling, or trying to sneak one (or three) reductions in on me or shooting themselves in the foot with having to grant an increase.

Sorry if it's confusing, I know it is for me.

Sgt. Wilky

 

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Sorry to hear of what you are going thru bud. Last year the VA did the same thing on my Scars. They reduced from 30% tpo 10%, no Re Exam, Notice or anything. Only because I am 100% Permanent that I did not challenge them. Sadly with VA and SSDI their are Certain conditions that they will Re Evaluate on Scheduled Time Lines 1yr, 3yr etc. Usually the VA does not go after 10% and lower ratings, unless that is the max granted for that type of condition. I see where you are coming from talking about the protection period coming up. What I say is that you should go to those Exams and as long as you have been seeking treatment, and have Medical Evidence stating that the SC conditions have not gotten better. In fact, if they are worse, then you should put in an FDC for an increase. I just had 2 back Surgeries since last October, and was granted 100% for the Back recently. Are you on SSDI for those conditions, or Medically Retired due to them? What all are you SC for? Please try not to get worked up as this will only make you feel worse and stressed out, neither are good. I have been thru 8 or 9  Re Exams, and only 1 condition was Reduced, which was the Scars. Good luck and keep us posted. God Bless

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2 minutes ago, Navy04 said:

Sorry to hear of what you are going thru bud. Last year the VA did the same thing on my Scars. They reduced from 30% tpo 10%, no Re Exam, Notice or anything. Only because I am 100% Permanent that I did not challenge them. Sadly with VA and SSDI their are Certain conditions that they will Re Evaluate on Scheduled Time Lines 1yr, 3yr etc. Usually the VA does not go after 10% and lower ratings, unless that is the max granted for that type of condition. I see where you are coming from talking about the protection period coming up. What I say is that you should go to those Exams and as long as you have been seeking treatment, and have Medical Evidence stating that the SC conditions have not gotten better. In fact, if they are worse, then you should put in an FDC for an increase. I just had 2 back Surgeries since last October, and was granted 100% for the Back recently. Are you on SSDI for those conditions, or Medically Retired due to them? What all are you SC for? Please try not to get worked up as this will only make you feel worse and stressed out, neither are good. I have been thru 8 or 9  Re Exams, and only 1 condition was Reduced, which was the Scars. Good luck and keep us posted. God Bless

I've been told by my private doctors (I've never seen the VA doctors except for my C&P exams [my VSO said that shouldn't be a problem]) that since the VA can't/won't diagnose it, that pain management is the best thing to do. Daily doses of Tylenol and Ibuprofen are what I take, it keeps me functional, but pain is always a part of my daily routine. I'm not concerned that they will reduce me, just that it seems they're wasting their time, and my time. I mention the pain every time I go to a physical with my private doctors. The pain is worse, but I never even thought of putting in for an increase-until they RFE'd me...

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Does anyone know which DBQ they'd use to re-evaluate a condition like this?

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I am allergic to pain medicine, so talk about daily pain, 13 surgeries with nothing, definitely made me tougher thats for sure. Alot of Vets hurt, but the VA likes to see hard Physical Medical Evidence like MRIs, X Rays, Cat Scans etc. The VA can not argue when that hard evidence is in front of them. Other then that kind of documentation, or without VA Diagnoses then it is just Your Word vs The VA, and they Win most of the time. I have to go thru Painful Cat Scans cause I can not have MRIs due to my Bladder Machine, but I will do whatever and I keep copies of all the test on CDs. Other then that dont know what to tell you bud. 

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The VA does new C&P exams on any condition not deemed permanent or "static" every 3 years.  It used to be 5 years.  This is not them trying to pull a fast one on you.  This is standard procedure.  And depending on the outcome of the exam, the disabilities in question, and your age it could move your conditions to being static with no future exams scheduled.

 

With that being said, I believe you are confused about the "protection" rules. 

 

5 year rule: If the rating has been in effect for 5 years, it cannot be reduced unless your condition has improved on a sustained basis (The VA must have documentation supporting this is a permanent improvement). 

This means that you have to show improvement over a period of time.  A single C&P exam cannot be used to lower your rating.  However a C&P along with treatment records can be.  However if your condition ceases, service connection can be removed.  

10 year rule: A service connected disability rating cannot be terminated if it has been in effect for 10 years. Compensation can be reduced if evidence exists that the condition has improved. The sole exception is if the VA can prove fraud, in which case the VA can terminate the benefits.

This means that you cannot have the service connection severed.  You can still be reduced to 0% if the medical evidence supports sustained improvement.

20 year rule: If the rating has been in effect for 20 years, it cannot be reduced below the lowest rating it has held for the previous 20 years. The only exception is if the VA can prove fraud.

This means that if you were granted 10% in 1998, then raised to 20% in 2005 you are protected at the 10% rate this year.  In 2025 you would be protected at the 20% rate.  

 

With all of that said, you have held your rating for over 5 years.  If your treatment records do not show improvement, then these upcoming C&P exams cannot be grounds to reduce.  

 

 

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