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ruby

Severance of benefits AO

Question

I’m having issues navigating on my iPad so I can’t research hoping someone knows this answer, someone I know from a va class we attend sent in for an increase he received his decision:

Background:

He was granted service connection  in 2014.  

He served in unit 330 ordnance 9/64 - 8/65 , Korea Ascom, he was told that he was in the dmz zone at some pt

He applied for an increase for several items that he was serviced connected for:

Decision:

 Are records  reflect that you are a veteran of Peacetime and Vietnam Era Rating decision dated Sep 2017 proposed the severance of several service connected disabilities.  The due process for that proposed severance has expired.  We will now make a final determination on those proposed actions.

everything is denied or severed 10-18 because:

We have been unable to confirm exposure to herbicides on either a presumptive or facts found basis.  His last page is missing it says more on why.

has the presumptive period changed orthe unit he belongs  to wasn’t in a herbicidal  area.

what I’m reading basically says we made a mistake in 2014 is that really possible?

he is working with the DAV and all they tell him is to nod.

 

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Ok.  VA has very specific rules pertaining to Severance.  First, they have to do a proposed reduction, and give the Veteran 60 days notice so he has an opportuniny for a hearing..so he can tell his side.  Did he get a proposed reduction?  

If the VA has reduced your benefits, then, YES, you need to file a nod disputing said reduction/severance.  

If the Veteran did not receive the notice of proposed reduction, then the VA may have to show they sent it.  However, if the Veteran did not keep his address up to date, this is not the VA's fault.  

Was the VEterans rating Permanent or temporary?  If the rating was temporary, (or less than 5 years), then they have an easier time reducing you, but this is a severance.  

Frankly, you should have requested a hearing when they proposed a reduction, but that sounds like its too late.  

     The VA is going to have to prove CLEAR UNMISTAKABLE ERROR.  You got SC, and the decision maker decided you met the criteria in 2014.  If another decision maker comes along, and says, gee you did not qualify, then you have a "difference of opinion" which is not cue.  Cue has to be undebatable.  MAKE THE VA PROVE CUE.  You dont have to prove anything.  READ OVER THESE:

 
Quote

 

§ 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 the service-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.


 

And:

M21-1MR, Part III, Subpart iv, Chapter 8, Section E

 

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He served out of the date range:

"Until now, only those Korean War vets who served in certain units along the Korean demilitarized zone (DMZ) between April 1968 and July 1969 could make claims regarding Agent Orange exposure. The new ruling, which was published in the Federal Register, extends the net of health coverage to those who served between April 1, 1968, and August 31, 1971 “in a unit determined by VA and the Department of Defense to have operated in an area in or near the Korean DMZ in which herbicides were applied.”

According to the Department of VA, Agent Orange is the name assigned to a combination of herbicides used by the US military sprayed from 1961 to 1971 in Vietnam to eliminate foliage that provided cover for the enemy. It was called “Agent Orange” because the 55-gallon drums in which it was stored had an orange stripe."

https://www.vets.gov/disability-benefits/conditions/exposure-to-hazardous-materials/agent-orange/

Where else did he serve?

Vets have proven their exposure to AO in Thailand, Guam, via C 123s, and even in the USA. It took a lot of work but they did it.

This link has a link to those areas:

https://community.hadit.com/topic/69048-is-it-common-knowledge-massive-amounts-of-agent-orange-sprayed-on-eglin-afb/

I hope that is the same list that is at the VA web site- but I have been unable to get through to both BVA and also the VA main page-the satellite my PC access comes from might be affected by the weather in N. Carolina.

 

 

 

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Well, Im sure that well may be true, Berta, but the fact remains there are rating protections, and the VA cant just change some rules, that means we lose our (permanent)  compensation.  

One or more decision makers decided this Veteran met the applicable criteria for compensation.  Res Judicata prevents VA from adjuticating this again.  If this Veteran had a temporary rating, or less than 5 years, all bets are off and VA can reduce temp ratings, 38 CFR 3.344 C gives VA the authority to reduce temporary ratings or those under 5 years.  

However, the VA has to give a reasons and bases for reduction, or the Veteran can appeal.  Shinseki tried to get rid of the "reasons and bases", and I am sure glad he did not succeed.  Vets have a right to know "WHY" they are denied...we need that, in part, for judicial review, so that we can protest it.  

Attorney's often 
"Win" a remand, when VA has an inadequate reasons and bases.  This does not always benefit the Veteran, as VA can, and sometimes does, concoct a new reason and bases for denial.  (We can appeal that reason, tho, also!).    When I was represented by NVLSP, they won a reasons and bases remand.  

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Even the 20-year GOLD Rule can be overturned if evidence of a "Fraudulent" statement is proven.

The initial SC Comp Claim and subsequent Award would be very informative. The "CROTCH" (USMC) either proved his exposure to AO, anywhere on the Planet while he had Active Duty.

Then just maybe, the USMC Active Duty Record doesn't support his AO Exposure, that should have been picked up on an RO Decision Quality Review post the Award Decision. the increase, other than an AO Presumptive Exposure. What non-AO Direct SC Conditions were and when originally Awarded and the SC's and Ratings.

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If the USMC made a mistake on his records, then that is not fraud (on the part of the Veteran).  Its not that unusual that there are errors in records.   Of course, if the Veteran "faked" portions of his records, then that is fraud, for example, if the Veteran altered his records to try to show he was in Vn when he was not.  

I am giving the Veteran the benefit of the doubt, and assuming there is no fraud here, at a minimum, until I find out otherwise.  

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