VA Disability rating/compensation reduction

[Richard Williams]

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.

[broncovet]

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 March 31, 2019 by broncovet

[Berta]

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 March 31, 2019 by Berta

[Buck52]

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,,,

[Richard Williams]

Many thank to all concerned for the very useful advice!