VA Raters - Can they lower existing disability ratings?

[MarineOne]

Hi all,

Quick question but may not be a quick answer...

During the rating/decision process, can they LOWER a existing rating? I am asking because I recently finished a C&P for CFS (CFS only on the DBQ), and in looking at the DBQ/exam notes, it's written as a definite 60% SC disability with all the proper Nexus and evidence met.

So, via the funny VA math calculations, that 60% CFS would get me to a 100% Schedular (I'm at 90% overall currently).

I am currently rated at the below as an FYI:

50% PTSD

40% FIBRO

30% Headache/Migraine

30% IBS

10% Restless Leg

So I'm wondering if they will try and lower an existing rating so I don't hit my 100%. I don't know why they would, I think all of the SC disabilities I have rate and stand alone (outside of my 50% PTSD rating, all based on Gulf War Syndrome/undiagnosed illness etc.).

My existing ratings are only about two years old, so not much has changed regarding symptoms or therapy. So no new evidence has been offered for those.

So what do you think? Will they lower any existing to keep me off the 100% total rating?

Thanks all in advance, below are the Exam Notes:

 1. Diagnosis

 ------------
 Does the Veteran now have or has/she ever been diagnosed with chronic 
fatigue
 syndrome?
 [X] Yes [ ] No
 
 [X] Chronic fatigue syndrome
 ICD code: R53.82
 Date of diagnosis: 2014
 2. Medical History
 ------------------
 a. Describe the history (including onset and course) of the Veteran's chronic fatigue syndrome:
 Veteran was in active service in the U.S. Marine Corps from 10/1989 to
 8/1993 with a tour of duty in Kuwait during the Gulf War. While there
 he was exposed to intense air pollution from burn pits and burning oil
 wells. He subsequently developed chronic fatigue, weakness and general
 malaise made worse by physical exertion and mental stress. He was seen at the Branch Medical Clinic on 3/6/1992 for general malaise. He has since continued to have chronic fatigue which has gradually increased
 as he has become older. When seen in C&P Clinic in 2016 his chronic fatigue was documented but felt possibly to be due to obstructive sleep apnea (OSA). That diagnosis has since been confirmed by Sleep Study and appropriately treated with CPAP with good control. However, he continues to have chronic fatigue and generalized weakness increased 
by physical exertion and mental stress unchanged from before.
  b. Is continuous medication required for control of chronic fatigue 

syndrome?
 [ ] Yes [X] No
 
 c. Have other clinical conditions that may produce similar symptoms been
 excluded by history, physical examination and/or laboratory tests to the
 extent possible?
 [ ] Yes [X] No
 
 If no, describe: Veteran has been diagnosed with OSA which has since been effectively
 treated without improvement in his chronic fatigue. TSH has been WNL on multiple occasions ruling out hypothyroidism.
 
d. Did the Veteran have an acute onset of chronic fatigue syndrome?
 [ ] Yes [X] No
 
 e. Has debilitating fatigue reduced daily activity level to less than 50% of
 pre-illness level?
 [X] Yes [ ] No
 
If yes, specify length of time daily activity level has been reduced 
to less than 50% of pre-illness level:
 [ ] Less than 6 months [X] 6 months or longer
 
 3. Findings, signs and symptoms
 -------------------------------
 a. Does the Veteran now have or has the Veteran had any findings, signs and
 symptoms attributable to chronic fatigue syndrome?
 [X] Yes [ ] No
 
 If yes, check all that apply:
 
 [X] Debilitating fatigue
 
 [X] Low grade fever
 
 [X] Nonexudative pharyngitis
 
 [X] Generalized muscle aches or weakness
 
 [X] Fatigue lasting 24 hours or longer after exercise
 
 [X] Headaches (of a type, severity or pattern that is different from
 headaches in the pre-morbid state)
 
 [X] Migratory joint pains
 
 [X] Neuropsychological symptoms
 
 [X] Sleep disturbance
 
 For all checked conditions, describe:
Veteran has constant fatigue limiting physical and mental activities. He tends to have low grade fever with malaise (for which seen in clinic during active service in 3/1992). Intermitent sorethroat improved with rest but returns after phsycial exertion and mental stress.  Generalized weakness and muscle aches are contatnly present. Veteran state that increased fatigue after physical exertion will last from hours to days
 (up to 1 week). Veteran has intermitent headaches 2-3 times per week.
 He states that he has constant joint pains involving shoulders, 
elbows,
 knees, hands and feet. His sleep is disturbed by OSA for which he 
uses
 CPAP and by nightmares. He has to constantly change position at night
 due to myalgias and arthralgias.
 
 b. Does the Veteran now have or has the Veteran had any cognitive impairment
 attributable to chronic fatigue syndrome?
 [X] Yes [ ] No
 
 If yes, check all that apply:
 
 [X] Poor attention
 
 [X] Inability to concentrate
 
 [X] Forgetfulness
 
 [X] Confusion
 
 For all checked conditions, describe:
 Poor attention span, inability to concentrate and forgetfullness are constantly present. He has mild confusion when he is extremely
 fatigue.
 
 c. Specify frequency of symptoms:
 
 [X] Symptoms are nearly constant
 
 For checked conditions, describe:
 fatigue, generalized weakness, poor attention, inability to concentrate and forgetfullness are almost constantly present. Confusion waxes and wanes and mainly occurs with extreme fatigue after exertion and mental stress.
 

 d. Do the Veteran's symptoms due to chronic fatigue syndrome restrict 
routine
 daily activities as compared to the pre-illness level?
 [X] Yes [ ] No
 
 If yes, specify % of restriction (check all that apply):
 
 [X] Symptoms restrict routine daily activities to less than 50% of the pre-illness level.

e. Do the Veteran's symptoms due to chronic fatigue syndrome result in
 periods of incapacitation?
 [X] Yes [ ] No
 

If yes, indicate total duration of periods of incapacitation over the past 12 months:
 [ ] Less than 1 week
 [ ] At least 1 but less than 2 weeks
 [ ] At least 2 but less than 4 weeks
 [ ] At least 4 but less than 6 weeks
 [X] At least 6 weeks total duration per year
 [ ] Other, describe:
 4. Other pertinent physical findings, scars, complications, conditions, signs, symptoms and scars
 -----------------------------------------------------------------------
 a. Does the Veteran have any other pertinent physical findings,
 complications, conditions, signs or symptoms related to any conditions
 listed in the Diagnosis Section above?
 [ ] Yes [X] No
 
 b. Does the Veteran have any scars (surgical or otherwise) related to any
 conditions or to the treatment of any conditions listed in the Diagnosis Section above?
 
 Yes [X] No [ ]
 
 5. Diagnostic testing
 ---------------------
 Are there any significant diagnostic test findings and/or results?
 [ ] Yes [X] No
 
 6. Functional impact
 --------------------
Does the Veteran's chronic fatigue syndrome impact his or her ability 
to work?
 [X] Yes [ ] No
 
 If yes, describe the impact of the Veteran's chronic fatigue syndrome, providing one or more examples:
Veteran is limited in his ability to perform work that requires physical exertion due to worsening fatigue and generalized weakness. He is also limited in his ability to perform work that requires mental alertness and concentration and involves mental stress due to his difficulties with concentration and forgetfullness and an increase in his fatigue.

7. Remarks, if any:
 -------------------
 The veteran's chronic fatigue syndrome is a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology,

 

Edited August 14, 2018 by MarineOne
DBQ notes were requested

[jfrei]

Hey honestly what was the cause of the fatigue syndrome. Did they list any of the other ones as being the cause. Just guessing headaches or ptsd? If that’s the cause they may try to combine them together so you don’t hit that mark. Can you attach a copy of the C and P?

[broncovet]

Yes, they can "lower" (reduce) your rating, but its difficult for them, depending upon how long you have been rated.  They have to send you a letter proposing the reduction and you can request a hearing to dispute the proposed reduction.   

Unless yours is a temporary rating, or you have been rated less than 5 years, you have protections, explained here:

§ 3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of theservice-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

[MarineOne]

I added the exam notes to the main.body of the question.

Thanks for replying jfrei.

[MarineOne]

Thanks for the info broncovet! Will research that as well.

[MarineOne]

3 hours ago, jfrei said:

Hey honestly what was the cause of the fatigue syndrome. Did they list any of the other ones as being the cause. Just guessing headaches or ptsd? If that’s the cause they may try to combine them together so you don’t hit that mark. Can you attach a copy of the C and P?

Added to main post

[jfrei]

16 hours ago, MarineOne said:

I added the exam notes to the main.body of the question.

Thanks for replying jfrei.

I actually meant your headaches a and p sorry since it says your chronic fatigue causes headaches I’m trying to see if ones secondary connected to each other. Kinda like my headaches are service connected due to my TBI