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Va proposal to reduce award


pointer123

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The VA is rating a previously awarded claim for 80% that got caught for late flowing evidence and are  now in the process of re-rating  all contentions in the awarded claim under EP 930. They are now stating that the rater that awarded me 30% for an eye problem for detached retina complications in the first claim made a mistake by using the diagnostic code for aphakia to give me 30%. Is this a VA CUE or just judgement by the rater that should stand as rated?

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I would say you need to check the M 21-1 For this question

EP means end Product  if the  rater made this type of error in rating  then they can come back to correct it.

CUE is another thing to consider  but if it won't change the outcome  you have no bases for CUE

Medical evidence is the best way to prove something like this  and a good IMO/IME from a respected certified specialist in this  field of medicine is some times the best way to keep our rated benefits and some times this leads to an increase and not a reduction...

 

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Im not following you.  I dont know exactly what this means:

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The VA is rating a previously awarded claim for 80% that got caught for late flowing evidence and are  now in the process of re-rating  all contentions in the awarded claim under EP 930

Under the doctrine of equipose, if you have a balance of positive and negative evidence, the Veteran would get the benefit of the doubt.  So, if you have a rating, and the VA gets ("caught for late flowing evidence") some evidence "against the claim", they may or may not reduce you.  

If you mean you submitted new evidence in favor of your claim, yes, the VA should reopen and consider the new evidence.  

To reduce you, the VA has to send you a letter of a proposed reduction and you have 60 days to provide new evidence to refute and explain why you should not be reduced.  Have you received a letter of proposed reduction? 

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Sounds like they must have did a review of his entire claim  for some reason?

if you sent in for a increase  this is usually what prompts this to happen  then they start diggin for answers  if they think they have a slim chance in reducing a veterans benefits that they already awarded   you bet they will come after you.

but as broncovet mention they have to send you a proposal to reduce you first and you keep your benefits as long as this is in appeals or until they prove they was right.

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No letter. 

If they used their head, they could rate my left eye for uncorrectable bilateral diplopia because the left eye acuity is worse that the right eye so that should be the eye that gets the rating.  My right eye is 30% and  was awarded over 20 years ago.

But they have to figure out how to get this claim with all the contentions re-rated and closed first. They should have rated it that way the first time, but they just assumed in the first C&P that prism glasses would fix the central double vision problem which the second C&P established as persistent and uncorrectable.

 

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Unfortunately the Raters are not Dr's You need a qualified Dr to give his favorable opinion on this  they will not take our word for it simply because were not Dr's  or you need to re flute this C&P Examiner with a private IME from a specialist  that will go into detail more so than the C&P Examiner Did.

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I think the claim got caught in a STAR review in Memphis and thatresults  opened Pandora's box.  I attended 3 new C&Ps for awarded claims and they sent out 15 medical opinion requests for various other denied requests which are now pending.

The second C&P audio exam results pissed them off because the doctor they sent me to came back with a 50% hearing loss assessment.  The second doctor was more qualified than the first, but they are sending out a third request for a new audio exam.  I am sure they will find one who give the the numbers they want sooner or later.

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The"late flowing evidence" is a nice way of saying that all my private medical records that they had in their possession were not used to rate the claim. They got caught after the claim was rated, so they now have to redo everything.

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10 minutes ago, pointer123 said:

The"late flowing evidence" is a nice way of saying that all my private medical records that they had in their possession were not used to rate the claim. They got caught after the claim was rated, so they now have to redo everything.

you could have a possible CUE if they had your evidence flowing or not ,private medical records can be used in a decision and if they had this in their possession and never considered it.?

evidence is what wins claims and its what we veteran use to prove our claims.

Edited by Buck52 (see edit history)
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here is just an example of the E.p 930

''Received a message from the VA about a Ep 930, what is it? "Thank you, Sir, for using the IRIS System. We established End Product (EP) 930 to continue developing your claim for service connection for dropped foot. Please know that both of your appeals are now considered “certified and ready” for the Board of Veterans’ Appeals (BVA) Travel Board. Before your claim folder is sent to the BVA for the travel board, we will create a temporary claim folder that will stay here at our Regional Office so that we can continue processing your EP 930 for service connection for dropped foot."

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You posted, 

Quote

The second C&P audio exam results pissed them off because the doctor they sent me to came back with a 50% hearing loss assessment.  The second doctor was more qualified than the first, but they are sending out a third request for a new audio exam.  I am sure they will find one who give the the numbers they want sooner or later.

They have a name for this, its called develop to deny.  They are not supposed to do that.  I see it that you have 3 choices:

1.  Do nothing.  (bad idea). 

2.  Get an attorney.

3.  Do some study, increase your skills, and represent yourself.  

     As far as CUE, that probably is not your best option.  You have apparently reopened the claim under 38 CFR 3.156 with new evidence.  That can give you a similar effective date, if awarded, as CUE, with a lower standard of review that is easier for you to "jump over".    

     That is, dont raise the bar too high for you to jump over, if you can jump over the lower bar and get rated and the effective date you want.  

     Likely, you are just frustated with delays, like all of us are.  If you do file a CUE, you need to cite the specific regulation they violated.  

     Again, its not cue for VA "not" to have all your evidence.  That's what 38 cfr 3.156 is for..... so you can submit this evidence, and get your rating at an earlier effective date.  Of course, there are rules with 3.156, like with everything else VA.  

The rules are here:

https://www.law.cornell.edu/cfr/text/38/3.156

 

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I did some research at the BVA site and cannot discount a possible CUE might have occured...

If the VA gave you the wrong diagnostic code, to your deteriment , that would be a valid cue but we really dont have much info here to know yet. There are multiple claims for decades on this type of disability at the BVA:, and of course the VA was found to hve performed a lot of botched cataract surgery in the past. 

The date and diagnostic codes they used are relevant to your claim.In this BVA decision the codes had changed for detached retina as a result of cataract surgery:

 


We dont know if that is what you experienced. This vet had filed under Section 1151.


"The Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a detached retina of the left eye due to surgery at a VA medical center was received on February 11, 2003.  Compensation under 38 U.S.C.A. § 1151 for a detached retina of the left eye due to cataract surgery was granted in March 2010.  In August 2010, the RO determined that the service-connected residuals of cataract surgery of the left eye warranted an initial 10 percent disability rating from February 11, 2003, to July 12, 2006; a 20 percent disability rating from July 13, 2006, to January 3, 2008; and a 10 percent disability rating from January 4, 2008.

The criteria for a disability rating greater than 10 percent for service-connected residuals of cataract surgery of the left eye (38 U.S.C.A. § 1151), from August 11, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.75 to 4.84a, Diagnostic Codes 6000 to 6099 (in effect prior to December 10, 2008).


With the non-service-connected right eye being normal (20/40 or better), the aforementioned findings of the left eye corresponds to a 30 percent disability rating pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6070.

Subtracting the 20 percent disability rating for the pre-surgery visual acuity from the 30 percent rating for the post-surgery visual acuity, the result is the current 10 percent disability rating. Moreover, the rating criteria reflect that the Veteran would only be entitled to a higher rating if he had anatomical loss of the left eye. This is not shown by the competent medical evidence of record. Consequently, the Board must conclude that the Veteran is not entitled to a disability rating in excess of 10 percent for his additional visual acuity since August 11, 2009."


https://www.va.gov/vetapp15/files4/1534900.txt


Then I searched for Aphakia-in 1998 BVA decision to see of that code had changed but apparently it didnt.

“Aphakia is rated under Diagnostic Code 6029, and is to be evaluated based on visual impairment. The resulting level of visual impairment is then elevated one step. The minimum rating for aphakia, either unilateral or bilateral, is 30 percent. 38 C.F.R. § 4.79, Diagnostic Code 6029 (2017).

"The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a) (2017). Impairment of central visual acuity and impairment of visual fields are evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6061 through 6081 (2017). Impairment of central visual acuity is evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6079 (2017). Measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76, 4.79, Diagnostic Code 6080 (2017). The maximum disability rating assignable for defective vision when only one eye is service-connected is 30 percent. A disability rating higher than 30 percent can only be assigned where there is anatomical loss of the service-connected eye. See 38 C.F.R. §§ 4.75(d). The Board takes notice that enucleation is the same as anatomical loss of an eye. See Dorland's Illustrated Medical Dictionary, 31st Edition, p. 635 ("enucleation" defined as "the removal of an organ, of a tumor, or of another body in such a way that it comes out clean and whole, like a nut from its shell. Used in connection with the eye, it denotes removal of the eyeball after the eye muscles and optic nerve have been severed."). As the Veteran is already in receipt of a 30 percent disability rating for his service-connected right eye aphakia disability, a higher disability rating can be granted for the Veteran only if there has been an anatomical loss involving his service-connected eye. The Veteran contends he is entitled to a rating in excess of 30 percent for his right eye aphakia status post cataract surgery with angle recession. “ https://www.va.gov/vetapp18/files4/1823611.txt

His claim for a higher than 30% rating for aphakia was denied.

In this case the veteran had received 30% for bilateral aphakia: I went back to BVA decisions in 1997-1998 to see if the codes for aphakia had changed since: .

"The criteria for an increased evaluation for the service- connected left eye detached retina with aphakia have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Codes 6029, 6066 (1997). According to the applicable regulations, unilateral or bilateral aphakia warrants a 30 percent evaluation. The 30 percent evaluation is a minimum evaluation which is not to be combined with any other rating for impaired vision. When only one eye is aphakic, the eye having the poorer corrected visual acuity will be rated on the basis of its acuity without correction. When both eyes are aphakic, both will be rated on corrected vision. The corrected vision of one or both aphakic eyes will be taken one step worse than the ascertained value, but not better than 20/70 (6/21). The combined rating for the same eye should not exceed the evaluation for the total loss of vision of that eye, unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. Part 4, Code 6029 (1997). Anatomical loss of one eye warrants a 40 percent evaluation, in addition to special monthly compensation, when corrected visual acuity in the other eye is 20/40 (6/12). 38 C.F.R. Part 4, Code 6066 (1997)."

https://www.va.gov/vetapp98/files3/9826764.txt

You posted 

"They are now stating that the rater that awarded me 30% for an eye problem for detached retina complications in the first claim made a mistake by using the diagnostic code for aphakia to give me 30%. Is this a VA CUE or just judgement by the rater that should stand as rated?"

If we can see the original award rating sheet codes  and it's date, we can help more.

It is possible that the they would change the diagnostic codes but also keep the same rating you have had.

Ratings are based on evidence in VA's possession at time of the decision.But it sounds like they are reviewing more than just the eye disability.

Did you actually get a formal proposal to reduce? I dont see how they send something like that to you ,with this info you told us of:

 "I attended 3 new C&Ps for awarded claims and they sent out 15 medical opinion requests for various other denied requests which are now pending." I assume the detached retina claim is still pending...????

The second C&P audio exam results pissed them off because the doctor they sent me to came back with a 50% hearing loss assessment.  The second doctor was more qualified than the first, but they are sending out a third request for a new audio exam.  I am sure they will find one who give the the numbers they want sooner or later."

I am surprised to hear that one- then again you sure might be correct but this sounds like  a fishing expedition.Then again you private records might have warranted a third C & P exam.

I hope you get copies of every C & P exam they do.

"The"late flowing evidence" is a nice way of saying that all my private medical records that they had in their possession were not used to rate the claim. They got caught after the claim was rated, so they now have to redo everything."

So they had to call a CUE on themselves-Yippee!

The original decision they apprarently made , had violated my favorite regulation , 38 CFR 4.6.

Were any of those private medical records from a real audiologist?

BTW- with the 80% SC now, they also might have to consider you for TDIU.

This might not be as bad as it first seemed to be.

I used to wish for a STAR review-my RO cannot read.

 

 

 

 




 

Edited by Berta
in cloud- access mess (see edit history)
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Once they find the correct regulation to correct this   and the VA finds that the rater made an error on rating this veteran or clerical error 

 do they make adjustments and possible reduce the veteran and make the veteran responsible to pay pay back an over payment.?

..when in all if this was not the Veterans fault  it was the rater who made a clerical error & not the veteran.

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Buck, that is a good question-

https://www.hillandponton.com/the-va-says-they-overpaid-me-what-does-that-overpayment-mean/

That link explains it and here is how it works:


 

"FINDINGS OF FACT 1. The Veteran and his wife divorced in March 2012. 2. The Veteran notified VA of his impending divorce in August 2011, that the divorce had occurred in May 2012, September 2013, and August 2014. 3. The VA took no action to remove the Veteran’s spousal dependency allowance until November 2014, thereby causing an overpayment calculated in the amount of $4,852. 4. It would be against the standard of equity and good conscience to require the Veteran to repay this overpayment debt. CONCLUSION OF LAW The criteria for waiver of overpayment in the amount of $4,852 have been met. 38 U.S.C. § 5301, 5302; 38 C.F.R. §§ 1.962, 1,963, 1.965."

https://www.va.gov/vetapp18/files9/18138215.txt


"ORDER

An overpayment of Department of Veterans Affairs (VA) disability compensation benefits in the amount of $1,338.00, was properly created, and waiver of the overpayment prior to February 13, 2015 is denied. Waiver of an overpayment for VA disability compensation benefits since February 13, 2015 is granted."

https://www.va.gov/vetapp18/files9/18138215.txt

Others were not successful:

ORDER

Waiver of an overpayment of death pension benefits in the adjusted amount of $74,362.00 is denied.

https://www.va.gov/vetapp19/files2/19108807.txt

In cases like this technically the VA overpaid this veteran but he was found guilty of fraud:

"The government intends to seek restitution for the Veterans Administration and the Social Security Administration for an estimated loss totaling $830,061, with the understanding that Hughes will dispute that figure and that a judge ultimately will determine loss and restitution before imposing sentence"

https://www.justice.gov/usao-mt/pr/columbia-falls-man-admits-government-benefits-fraud

 

 

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broncovet quoted

''  Again, its not cue for VA "not" to have all your evidence.''

it may not be CUE,

but when the VA has all the evidence in their possession they need and not use use it to help adjuicate a Claim   somethings wrong here and its not on the Veteran  its on the VA for not reading or looking at the Veterans evidence they have in their possession ,especially when they admit they have the evidence.

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I hate to repeat here again what a CUE under 38 CFR 4.6 is:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

In all of my past CUEs (I have not lost one yet )

my most probative evidence was not considered in past decisions and it was not listed in the Evidence List.

Obviously that is a prime facie CUE. They resolved those issues under CUE.

In my last denial, my sole piece of evidence,a report from the head cardiologist at VA Central Office,prepared for my FTCA settlement, WAS listed as evidence -but never considered by VA or the C & P quack at all.

I immediately cued them under 38 CFR. 4.6 -mailed the CUE the next day- and within 3 weeks I got the award letter.

It came fast because I used the alphanumeric stated on the denial- this alpha code contains the initials of the last idiot who handled my claim.I advise others cueing in the appeal period , to do it ASAP and direct the CUE as Attention to and put their initials next.

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

I cannot understand why this is such a difficult regulation to understand. This is basic VA 101.

 

Every element ( meaning  which the VA has in their possession) in any way affecting the probative value (meaning it is substantial medical evidence ,or in some cases non medical evidence,to prove the theory of a claim))  to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board ,meaning they have to acknowledge it and read it) in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

 

 

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I would think if the VA had his evidence in their possession and never looked at it and they knew they had it and it would have change the outcome to the veterans favor  I believe  this is CUE

under 38 CFR 4.6 

"§ 4.6 Evaluation of evidence.

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My right eye was rated for aphakia over 20 years ago and rated 30%. It is a protected rating -- can't be touched.  I filled for my left eye detached retina with complications in 2017 and received a 30% rating for it under diagnostic code 6029 - aphakia.  I never mentioned cataracts or absence of eye lens in the claim.  Somehow the rater selected this diagnostic code and rated the left eye using the proper process for that code for the left eye even though they could have rated the left eye for bilateral uncorrectable diplopia at 30%.

My hearing was service connected at 0% in 1997 and has gone to crap since then; so I filed a request for increase in the 2017 claim with a boatload of arthritis claims as a retired Marine infantryman with parachutist and scuba diver MOSs.  The result of this claim was 80% combined.

After the STAR, they started the EP 930.

Just got the official Decision Notice:

They called CUE on 5 issues for improper effective dates to my advantage.

They called CUE on the way they rated my left eye and proposed my left eye be rated at 0% which reduces my combined to 70%.

They deferred 15 items.

They clearly stated they planned to sever my left eye 30% and say "if this reduction weer to take effect, your disabilities would be reduced to 70% disabling.

Is this an official notice to reduce which starts the 30 and 60 day clocks ticking?

I can't tell you how badly they screwed up this claim

 

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"Just got the official Decision Notice:"

Can you scan and attach it here? Cover your name, address, C file # prior to scanning it.

"They called CUE on 5 issues for improper effective dates to my advantage."

Holy Cow!

"They called CUE on the way they rated my left eye and proposed my left eye be rated at 0% which reduces my combined to 70%."

Holy  CRAP! 

They deferred 15 items.

Holy Good news!   Was TDIU one thing they deferred on?

"They clearly stated they planned to sever my left eye 30% and say "if this reduction weer to take effect, your disabilities would be reduced to 70% disabling.

Is this an official notice to reduce which starts the 30 and 60 day clocks ticking?"

I don't know---It is worded differently than a usual proposed reduction- as to the "if" part.-Did they give you appeal rights as to the proposed reductions?

I am surprised they are doing this because it is as likely as not they buggered at least one of those deferred items- probably definitely the HL claim and other claims as well.

"I can't tell you how badly they screwed up this claim"

I am a widow of a combat vet and they(VA) screwed up ( with help from my dumb former vetreps in one case- my most important claim)) every other claim I have ever had.That's OK . I got what I wanted.

You have to hang in there-and dont forget- if they decide and are legally wrong again , you can CUE them even if it is an award.

I have 3 CUEs pending on an award letter (AO IHD and 1151 stroke) and won past  3 CUEs on a 1998 award letter.But I prefer GCY Cues and will whip one out if they make any more legal errors.

I believe in the long run you will do very well with all this.  

Are you employed ? If not do you receive SSDI?

(GCY cue -Go CUE Yourself VA!)

I bet this crap happens more than we will ever know.

And what is worse is when a vet rep on the POA does not have a clue.

I won all of my claims due to Persistence, and Evidence and by reading all the VA Case law I could.

Oddly enough, although the VA put up quite a battle when I FTCAed them for the wrongful death of my husband, and I had no lawyer and no independent medical opinion, but those 3 key things I had, persistence, evidence , and a good handle on VA case law, were all I needed, and at some point that whole issue became the easiest claim I ever had.FTCA/1151-

because the Regional and General Counsel lawyers know how to READ!

 

 

 

 

Edited by Berta (see edit history)
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They failed to even mention diabetes type II (completely omitted) which has a strong nexus letter from a diabetes endocrinologist ( I thought it would be a shoe in)  and vertigo (omitted). Both of these items show as active claims in the exalted ebenefits....

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"Somehow the rater selected this diagnostic code and rated the left eye using the proper process for that code for the left eye even though they could have rated the left eye for bilateral uncorrectable diplopia at 30%."

Can you get a real eye doctor to state that?

There is a lot to the eye ratings.

It is all here in our VA Schedule of Ratings forum, and the Diagnostic codes are about halfway down the PC scroll- it is a long document and reveals the exact type of evidence we need for the most favorable ratings we can get.

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