Need Help On RFE C&P Exams

[Sgt. Wilky]

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

 

[Sgt. Wilky]

On 5/9/2018 at 5:31 AM, Tomahawk said:

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.  

 

 

Thank you for helping me clear that up and breaking it down Barney style for me. Your explanation helps me to look at this with a lot less anxiety.

 

Sgt. Wilky

[Sgt. Wilky]

23 hours ago, pwrslm said:

Ive had 2 RFE's on my LLE so far. I pulled the regs on them and, as usual, they dont follow the M21-1 on this stuff. These M21-1 rules are backed by the CFR and USC.

• M21-1, Part III, Subpart iv, Chapter 3, Section B - Scheduling
• Examinations  (Table)
• If the case necessitates a(n) ... Then, at the time of the rating decision’s preparation, schedule the examination to be conducted ...
• routine future examination to monitor for anticipated improvement in an SC disability in three years.
• reexamination to monitor for evidence of sustained improvement in a stabilized SC disability that is shown to have
• improved in 18, 24, or 30 months, depending upon the facts and implications of the individual case.

So now I see they should not be sending me  to C&P exams every 12 or 14 months, but 18-36 instead. 

Then I go to the next section:

• III.iv.3.B.2.d.
• When Not to Schedule Review Examinations
• Do not establish a future examination control in cases when
• the disability is static, without material improvement over five years
• the disability is permanent in character and of such nature that there is no
• likelihood of improvement
• the Veteran is over 55 years of age (except under unusual circumstances
• or where required by regulation)
• the evaluation is the prescribed schedular minimum within its DC
• the evaluation is 10 percent or less, or
• the combined evaluation would not change even if the reexamination
• resulted in a reduced evaluation for one or more disabilities.
• Important:
• When deciding if a disability is static or not, only order a future
• examination if there is objective evidence stating clearly a disability is
• likely to improve.
• The principles expressed in this block apply equally to (1) initial routine
• future examinations and (2) reexaminations requested in the interest of
• substantiating sustained improvement. Therefore, where one or more of
• the above criteria are applicable, and the evidentiary record includes a
• single examination report (or alternative form of medical evidence)
• portraying improvement in a disability that has persisted at its assigned
• level of evaluation for five years or longer, do not proceed with scheduling
• an additional reexamination unless doing so is
• required by regulation, or
• warranted in light of unusual circumstances, such as in cases of
• Veterans over age 55.

So, I turned 59 last week. Asked them why am I having to submit to these, the RO should be spending time on other vets. Besides, I gave them Non-VA med records from a specialist on my condition that prove my LLE is worse now than a year ago. So far they ignored me, so I also did a complaint on the WH Hotline. In light of all this, there  is a THIRD section that covers over 55 exams:

 

• III.iv.3.B.2.e. Considering a Veteran’s Age in Connection With Review Examinations
• As is discussed in M21-1, Part III, Subpart iv, 3.B.2.d, and with only a few rare exceptions, Veterans over the age of 55 must not be routinely recalled for reexamination.
• (note: If, however, a future review examination is deemed warranted in light of unusual circumstances, the claims processor must identify and document the nature of the unusual facts found in the form of a remark in the SPECIAL NOTATION field on the PROFILE screen in the Veterans Benefits Management System (VBMS) – Rating, or permanent VBMS note, if no rating decision is being simultaneously prepared.)

So I wait for an answer. They have no "special circumstances note in any of my CFile so I have a fairly solid ground to fight them about it.

If your rating is 10% or less, they should not be doing this.

 

I have 3 separate ratings, at 10% each that are, or will be scheduled for RFE. If two of those ratings were reduced to 0% then it would change my rating from 80% to 70%. But even so, I'm wondering if the VA is out of line by scheduling me for the RFE since it/they are at 10% each...

Thank you for your post!

Sgt. Wilky

[Sgt. Wilky]

Hey PWRSLM, 

 I'm also wondering if this is an RFE because the regulation under which these disabilities are "required by the regulation or diagnostic code (DC) under which the Veteran is service-connected(SC) [III.iv.3.B.2.a.  Criteria for Requesting Review Examinations]." I've not had an opportunity to look at my 2015 decision because I've been travelling for work, but when I get home, I'll be doing so.

[Navy04]

As a few of us stated, it is just Routine stuff, especially the fact that the VA Docs did not diagnose or treat you for them, therefore the exams are to see if you are the same, worse or better. The longer you are on VA Compensation Benefits, the more interaction you will have to have with them, regardless of who is treating you bud. The SSDI have worked the same so far, in my case anyways. As long as you have Medical Notes or documentation from your Civilian Docs there should not be any issues. Who knows, the VA RO might even increase your conditions. The DBQs should be the Back, and Nerve/Neurological forms. Just stand by for the exam dates and good luck. Keep us posted.

[Sgt. Wilky]

Hey, thank you all for your responses! My rep is looking into the actual why, and I totally understand that I'll have to see them. The thought did cross my mind that they may even increase, but I'm not worried that they'll decrease the ratings. I will post updates.

Sgt. Wilky