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VA Disability rating/compensation reduction


Richard Williams

Question

When notifying me of their intent to reduce my advanced/stage III prostate cancer (PC) disability to PC "residuals", in h/her assessment, the VA's adjudicator's rationale for the reduction, assumed that after treatment, the cancer was now in remission, a decision with which my team of doctors did not concur. On receiving notification of the VA's intent, I submitted a Notice of Disagreement (NOD), with additional medical evidence provided by my physician, that verified that my residuals should be 80%, (versus 60%) based on the VA's own criteria. 

The VA did not reply to my NOD, but later notified me that their estimate of the NOD's anticipated resolution was 567 days, due to their backlog & any appeal I might submit would have an undetermined end date due to their backlog. The VA then, at the end of Feb. 2019, unilaterally, without consulting with me, reduced my disability & compensation without following the normal VA procedure, i.e., sending me a letter of reexamination and arranging with me to have a physical reexamination by a VA appointed physician before a decision could be taken by the VA to reduce my disability rating & compensation. At this point, the VA has not given me their decision on my request to reinstate my previous rating until the VA procedure is followed to make an interim decision on my disability compensation. I will be grateful for advice and recommendations.

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No offense, you should have come to hadit earlier!!

You dont "file a NOD" to a proposal to reduce.  Instead, you can ask for a hearing and/or submit evidence and your testimony as to why it should not be reduced.  

ONLY after its been reduced do you file a NOD, disputing the reduction.  You might be able to speed this up by opting into RAMP.  

 

Edited by broncovet (see edit history)
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Richard I would like some info. Number 1: how long have you been service connected for the Prostrate Cancer?

There are certain protections built in to preserve a rating. Some ratings have a yo yo effect based on on the type of disability. Some disabilities are curable and they can re rate based on residuals. Now if the VA has lied about the improvement and the doctors do not agree that you have improved then I would ask for a hearing. Personally I would have already did that and followed up with a white house hotline call and a TORT Attorney. 

Personally I would contact John Dorle at Benefitsagent@comcast.net and get his take on the issue. He may be able to help you get it reversed quickly. 

 

Hang in there. The VA aims to please, Oh well at last they aim.

 

Basser

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I agree with Jbasser

Why didn't you request a DRO Hearing ? I believe it would been solved in your favor and maybe an Increase and not a decrease?

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Thanks to all of you who replied - for your thoughtful advice. I have written to John Dorle for his advice/assistance and I've now asked VA for a DOR Hearing in the hope of getting this resolved.

As it is likely to take, according to the VA, another 1 1/2 years+ to resolve the NOD, I have considered applying for VA Individual Unemployability, as I am now unable to be employed as before. Could you tell me your views of that possible course of action?

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If you recieved a Letter from your R.O. letting you know they have information proposal to reduce your benefits or your disability is not as bad as you claim, the letter should have information to inform you as to what you need to do to solve this...most likey they will have information letting you know you have a certain limited time to Request a DRO Hearing  with in 60 days of the reciete of the proposal letter.

you request the DRO Hearing and the DRO Choosen to have the hearing will send you a letter letting you know the date and location and time of the Hearing and any evidence to support your reduction. usually a good IMO from a qualified Dr letting the DRO Know he has examine you and give his professional opinion on your S.C. Disability and why he thinks you should not be reduced.  he also needs to state he has read your pertinent  medical records. (about this disability in question.)

Now if you hire John Dorley he may attend the Hearing with you or by himself  if you can't travel  ..they do have tele-conference Hearing for veterans that can't travel due to their S.C. Disability.

as for the IU  YOU need to file the 21-8940 Form

here is a PDF.

https://www.vba.va.gov/pubs/forms/vba-21-8940-are.pdf

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Prostate cancer is usually given 100% for 6 months then rated on the residuals-

the regulation is here under a search-posted many times- 

this is not the same thing as a regular proposed reduction.

You said, "At this point, the VA has not given me their decision on my request to reinstate my previous rating until the VA procedure is followed to make an interim decision on my disability compensation. I will be grateful for advice and recommendations."

"On receiving notification of the VA's intent, I submitted a Notice of Disagreement (NOD), with additional medical evidence provided by my physician, that verified that my residuals should be 80%, (versus 60%) based on the VA's own criteria. "

Great!!!!!

I believe the NOD warranted the interim decision.

 

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Berta is correct.    "Temporary" ratings dont qualify for "protections" under 38 CFR 3.344 because of item "C".  

https://www.law.cornell.edu/cfr/text/38/3.344

However, according to CCK law, you can not file a nod on a proposed disability reduction.  

https://cck-law.com/news/va-rating-reduction

In pertinet part, from CCK law:

Quote

There are due process laws that VA must follow in order to reduce a veteran’s rating. To initiate a rating reduction, VA’s first step is to send a notice to the veteran that VA has proposed to reduce his or her rating. This notice is not a rating decision. You cannot appeal a proposed reduction using a Notice of Disagreement (NOD) as you would a rating decision.

If a veteran does not agree with the proposed reduction, he or she has 30 days to request a hearing (although this step is not necessary to fight a reduction). If you do request a hearing, VA cannot reduce a veteran’s rating until it is held. Requesting a hearing can supply the veteran with additional time to submit new evidence to fight the proposed reduction. Whether you request a hearing or not, veterans have 60 days to submit new evidence.

If the VA issues a decision reducing a veteran’s disability rating, the veteran should follow the traditional appeals process by filing a Notice of Disagreement (NOD). Note that once VA has issued a decision reducing your rating, it will go into effect and your benefits will be impacted.

Assuming CCK law's information is correct, my advice stands.  You cant file a nod to a proposal.  You should have disputed the proposal.   However, its possible an attorney could argue that you DID dispute the proposal by submitting new evidence, if done within 60 days.   That, however may be "moot", as the bottom line you will need to appeal the DECISION.  Dont appeal the proposal.  ONLY finally adjuticated decisions can be appealed.   It just does not make sense to appeal a decision "in progress".  

Edited by broncovet (see edit history)
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When my husband got a proposal to reduce his 30% PTSD to 10%  Christmas Eve 1988- (the tree went flying out the door he was so pissed) I prepared a scathing NOD for him. About 8 months later the VA dropped the proposal due to the NOD.He never requested a hearing.Dont even know if there were DROs in those days.

Amvets was his POA at the time and he was at work at the VA when they called for him- the vet rep said I should give him the good news when he got home- and asked who prepared the NOD. I said I did using the same regulations they used in the reduction against them ,coupled with basic common sense.

Oddly enough his PTSD SC EED when he died was Nov 1, 1991 and the retro rating was 100% P & T for PTSD.

Obviously his PTSD had escalated, and was never at 10%.

I guess it all depends on the RO and getting someone there who knows how to read.

Maybe there is a new regulation on not filing a NOD????

But you are right that any vet who gets a proposed reduction MUST fight back right away....

This vet did send them additional medical evidence and I believe he was right to file the NOD as well.Why wait for the "interim" decision?

 

 

 

Edited by Berta (see edit history)
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I agree with broncovet  you can't NOD a proposal to reduce, you can request a Hearing and have the proposal Reduction solved..within 60days after the proposal letter, usually Veterans do this with a Decision Review Officer  and  the DRO Writes you a letter letting you know your request for a DRO Hearing is Granted  the DRO Should let you know the information about the Hearing. date and time and location  usually at your VA Regional Office.

while at your R.O. You can check with a VSO  and ask he/she can go in with you to your Hearing.....if you do  go early to let the VSO know more about your case.  This is why you need a IMO to rebut what the Dr's Mention to reduce your benefits  in the first place  also family and friends Notarize  statements  about your disability in detail.  how they notice your disability or disability's ect,,,ect,,,

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