C&P Exam

[Flyfishingnut]

Does anyone out there know of the Section within Title 38, which states that the VA, has to give you a C&P exam prior to lowering a Disability Rating?  I went in for a C&P for A&A, they denied it, put in the process lowered some other Disability Rating, that had nothing to do with what I went for in the first place.  I've been trying to find that section regarding lowering a present Disability without an exam.  

Any assistance would be greatly appreciated.

[Buck52]

https://www.law.cornell.edu/cfr/text/38/3.327

[Buck52]

We we go for a C&P Exam

The examiner looks at the condition YOUR CLAIMING and has access to all your medical records & S.C. CONDITIONS and they make notes to them.

That is the only way VA can find out of your showing improvement on your   S.C. Conditions  which prompts a C&P For that condition. &

Also notes from your VA PCP & Speciality Clinics

For them to reduce you they need medical documention from a reliable source that you have shown improvement

.and they require you to have two C&P Exams.

then there's the 5 year rule  the 10 year rule and the 20 year rule.

[Buck52]

13.5. Increasing, Reducing, and Severing Disability Ratings

Obtaining an award is not the end of the process. Except under very specific circumstances, VA disability ratings can be increased, decreased, or completely ended ("severed"). Claimants, of course, enjoy the right to apply for an increase in disability rating whenever the evidence shows that the condition on which a rating was based has gotten worse. On the other side of the coin, VA has the authority to request claimants receiving compensation attend medical examinations and can, if the underlying condition improves, decrease a rating or even end compensation for that claim.

INCREASE

Unlike an initial claim, a claimant does not need to complete a full application to request an increased rating. The most direct way to request an increase is to send VA a letter stating that a service-connected condition has gotten worse and requesting a higher rating for that condition. VA can also accept other documents, such as medical reports showing that a condition has worsened, as a request for an increased rating.

VA duties on receipt of a request for an increased rating are similar to that for an initial claim. However, because service-connection has already been established, development of an increased rating is usually focused on medical evidence regarding the severity of the condition. Generally, VA schedules a C&P examination regardless of the medical evidence submitted by the claimant. If awarded, the effective date of an increased rating is the date that VA received the request for increase. The denial of an increased rating can be appealed the same way as the denial of an initial claim.

REDUCTION

VA is authorized to require claimants to periodically report for medical examinations. Examinations are usually scheduled for awards based on conditions that could change in severity over time. As with initial C&P examinations, claimants have a duty to report for examinations when scheduled. Failure to show for an examination without an acceptable reason could cause VA to reduce or stop payments.

If VA obtains medical evidence of an improvement in the claimant's condition, VA can seek to reduce the disability rating. Before monthly payments can be reduced, VA must follow a formal process to first propose a reduction in the rating and then reduce the rating. Most importantly, a claimant who VA is seeking to reduce in rating must receive notice of the proposed reduction before any change occurs and has the right to challenge the reduction and submit evidence against the reduction. Further, some long-term ratings have "protections" from reduction. In any case, a claimant receiving notice of a proposed reduction needs to respond quickly (usually within 30 days) to prevent a change in payments before he or she can challenge the decision to reduce.

Claimants who decide to challenge a proposed reduction and request that payments not be reduced during the appeal must be aware of the possibility of having to repay money to VA if the appeal is unsuccessful. This point is often overlooked. But, if VA pays compensation at a rate later found to be incorrectly high, the claimant will "generate an overpayment" which will have to be paid back to VA. If the rating change is large, the amount owed to VA could be significant. In addition, if the claimant cannot or will not repay the overpayment, VA will withhold an amount from future compensation payments until the overpayment is resolved. Claimants who challenge reductions are strongly urged to keep the impacts of a possible overpayment in mind.

Whatever the case, VA must make several determinations before a reduction can occur. These include: ensuring that the proposed reduction is based on a proper medical examination; finding that there has been an actual change in the condition, not just a temporary improvement; and basing a decision to reduce on entire history of the condition. Each of these determinations can be challenged by a claimant and a decision to reduce can be appealed the same way as an initial denial with the same risk of generating an overpayment.

SEVERANCE

VA can also terminate or "sever" service-connection of some or all claims. This is not a common action, but VA will sever claims when it determines that earlier decisions to grant were based on fraud, an illegality, or clear and unmistakable error by VA in making the award. The process for severing a claim is similar to a rating reduction and the claimant has similar rights to challenge the decision to sever and similar overpayment risks.