Va proposal to reduce award

[pointer123]

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?

[pointer123]

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.

[Buck52]

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 April 19, 2019 by Buck52

[Buck52]

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."

[broncovet]

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

 

[Berta]

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 April 20, 2019 by Berta
in cloud- access mess

[Buck52]

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.