Proposed reduction of disability rating

[morganpam]

Hi! I received my decision letter from my last review.  I spent just over 5 minutes with the psychologist for my exam. I’ve been rated at 100% since 1 Feb 2010. They said my mental health has shown improvement and reduced my rating.  I’ve been on the max dose of anti-depressants for 8 years, I tried taking 3 college courses last year and had to drop 2 because it was overwhelming, I am dealing with not only what I was rated for when I retired but have additional diagnoses of gastroparesis, Narcolepsy, pudendal neuralgia, loss of bladder and bowel control and anger issues which are all service connected. I just never bothered creating a new claim as I was already 100%, though not P&T .  I deal with almost weekly pelvic floor and pudendal nerve injections, have had 4 surgeries and am facing more with that whole mess, have no social life, suicidal thoughts, and grief over how my career went downhill over the last 5 years ending on a hugely sour note. But, they say I’m improved and reduced the mental health rating from 70% to 50%. My overall rating will be 90% which means I’ll lose my dental benefits too which is a concern with the constant throwing up with gastroparesis. I’ve had several appointments with a mental health counselor for one on one counseling but it takes everything I have to get myself together and drive the 75 minutes to the VA just to talk to someone who doesn’t seem to know how to help me. I don’t understand why they think I’m improved.

We were also counting on the free college tuition offered in our state for daughter who is a junior so still had another year before heading off to college. I’ll lose that benefit as well. 

 

All that to say, do I appeal or request a hearing? I’ve had several reviews over the years but this was the first they have proposed reducing my rating. 

 

Thanks!

Edited April 30, 2019 by morganpam
Forgot to add something.

[morganpam]

I received my decision letter last week. They are reducing my major depression to 50% from 70% which reduces my overall from 100% to 90%. It is effective 1 month before I would have been 100% for 10 years. I don’t know what to do. I reviewed my blue button records and there is misinformation from the few counseling sessions I’ve had. They talk about me being a caregiver for my brother, husband and dad. I have only been there to give advice over the phone. My brother is independent and lives an hour from me. My dad was moved to a veterans nursing home, again, an hour from me and I am there to listen to listen to my mom by phone who has guilt as he is now 6 hours from their home. I am not a caregiver to anyone much less trying to take care of myself. I’m so upset as this will not only bring a reduction in disability pay but I will lose my dental benefits. 

Should I find a veterans disability lawyer or a VSO? I would t receive any back benefits as I’m already 100% so can’t imagine a lawyer would sign on to help appeal?

 

[Vync]

For starters, let's examine the top half of the MH rating table:

§4.130   Schedule of ratings—Mental disorders.

Quote

Rating
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.	100
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.	70
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.	50

There are a lot of and's and or's in the criteria. 50 and 70% both require both "occupational and social impairment", but to different degrees. You're retired, so occupational should not apply unless they somehow construed that as attending school through VR&E. Check the remaining factors in each tier. What you need to look for is reasons why you more closely match the 70% criteria.

Check your C&P exam findings and the Reasons and Bases in the rating decision. Compare that to the above rating criteria. It is entirely possible that the VA may have screwed up (they are known to screw things up).

If your C&P exam was done at the VAMC, you should be able to request a copy from the hospital's Release of Information office or even online at myhealth.va.gov via their Blue Button feature. If it was done at another location via a contractor, I think you might have to request it from the VARO and it would probably take a while.

 

Here is some information on VA ratings protection (but the word "protection" has a different meaning to the VA). The exception to these rules is if they can prove fraud.

5 years

Quote

§ 3.327 Reexaminations.

(a)General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

(b)Compensation cases -

(1)Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

(c)Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

Cross Reference:

Failure to report for VA examination. See § 3.655.

[26 FR 1585, Feb. 24, 1961, as amended at 30 FR 11855, Sept. 16, 1965; 36 FR 14467, Aug. 6, 1971; 55 FR 49521, Nov. 29, 1990; 60 FR 27409, May 24, 1995]

There is a lot in this part. The key takeaway is they should not reduce after a rating has been in effect for 5 year unless material improvement has occurred.
  Because you are retired, 3.327(b)(2)(iv) would be very important if you are over 55 years old. They would have to show "unusual circumstances".

 

10 years

Quote

§ 3.957 Service connection.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

(Authority: 38 U.S.C. 1159)

[33 FR 15286, Oct. 15, 1968]

In brief, severing SC status for a rating in effect for 10 years is not allowed. 

 

20 years

Quote

§ 3.951 Preservation of disability ratings.

(a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved.

(Authority: 38 U.S.C. 1155)

(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.

(Authority: 38 U.S.C. 110)

[34 FR 11970, July 16, 1969, as amended at 57 FR 10426, Mar. 26, 1992]

A rating in effect for 20 years, it cannot be reduced below the lowest rating it has held for the previous 20 years. Basically if you held the same rating percent for a disability for 20+ years, they can't reduce.

 

If you get an IMO from another doc, ask them to indicate if your condition is expected to improve. If it isn't, then they should not reduce and should not schedule additional exams.

 

Another option is to request individual unemployability (IU). If you are unable to work due to your SC disabilities, they can deem you unemployable and it would bump you up to 100%.

 

[morganpam]

Just wanted to update. It turns out they didn’t have my VA mental health records so, after reviewing those and a comp exam, a week later my appeal was not only approved but my rating is now 100% P&T.

[vetquest]

Congratulations morganpam.

[GBArmy]

morganpam Congrats!!! U done good!

[broncovet]

Congratulations!  We dont have to fear the big, bad reduction wolf.  He really is a puppy dog, because they removed all his teeth with this regulation:

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

This said, since the puppy dog doesnt smile, we dont know he has no teeth, so many are still afraid of him.  Nice Puppy,  come here!!

Of course, he could knock you over and lick you to death!  Lol

Edited March 16, 2020 by broncovet