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DRO Hearing for SC Severance


Sgt. Wilky

Question

Good Morning,

I have a DRO hearing next Wednesday the 6th at the Denver VA for a proposed service severance of three conditions granted by the BVA in 2015, with the original claim being from 2008. I do plan to present the 10 year rule and see if the DRO will admit to this rule and see what they say. Also, my neurologist and Rheumatologist have been tremendous helps over the last couple years. My Rheumatologist filled out two different DBQs for me, and my NP Neurologist did a great job with with the medical record documentation.

My question is, the three conditions up for severance are for "left lower extremity pain, right lower extremity pain, and upper and lower back back pain", 3 separate 10% ratings. However, because of this hearing, and the ensuing search for answers, I've since been diagnosed with Psoriatic Arthritis, Overlap Syndrome, inflammatory arthritis, crystalline arthritis, and Reynaud's syndrome. I'm on 7 different daily meds, 2 supplements, and 2 once-a-week meds (Enbrel [a biologic] and methotrexate). I'm wondering if I should not wait, and instead go ahead and file for these conditions, or should I wait to see where the chips fall, and then wait to file for an increase?

I'm currently at 80% combined for several things. But would these new diagnoses blow up my claims file? I'm wondering if I could be at over 100%? I wasn't looking for it, but the VA may have shot themselves in the foot trying to nail me.

Sgt. Wilky

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Shrek is correct, never wait to file. I would file today and also bring all of this with me on 11/6 for the hearing. Be as proactive as you can when it comes to filing new claims.

Good luck with your hearing.

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I looked an could no longer see the 10 year severance regulation.  It appears to have been replaced by CUE.  That is, the VA has the burden of proving clear unmistakable error in the decision.  Look for yourself, I may have missed it:

Quote

Dont forget this one, which may help.  You might be "just before" the 5 year protection, but check your effective dates.  

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

Do your homework, if representing yourself.  Your opponent will, and dont give them "the element of suprise", relying upon an old outdated regulation.  However, if this regulatory change was made since you were rated, you may be eligible for the older regulation.  

Remember the 5 P's.  Proper Preperation Prevents Poor Performance.    I just gave a few reference regulaitons as a starting place.  Also check BVA decisions, or cavc.  BVA decisions are non precedential, so I suggest citing the regulation the BVA decision cites..not the BVA decision.  

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The VA having to prove CUE (instead of 10 year severance protections) may just be in your favor.  Cue is an onerous standard..undebateable, and you are debating the interpretation!!!!

Again, check for yourself, the regulatory changes are in constant flux, do a search to see if regulations changed in the period and, which standard VA must comply with.  

You have lots of homework, failure to do your homework could result in a reduction or severance, just like failing to appeal can result in lower net benefits.  

If you are unable/unwilling to do this homework, consider a representative pronto.  (lawyer or non attorney practioner, such as Alex Graham).  You can email Alex at his email address at his website: Asknod

 

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Bronco's advice is good, it is up to you whether or not you wish to follow it. Remember as the veteran no one will be pasionate with the claim than yourself. After all you are the one who will either lose or gain. Don't wait and start researching now there is still plenty of time. 

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@broncovet is this what you were looking for?

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]

 

Also, here's the 10 year rule from M21-1

Quote

Protected Ratings - Veterans Benefits Administration

2.  Ten-Year Protected SC Under 38 CFR 3.957

 

Introduction

This topic contains information about the protection of SC under 38 CFR 3.957, including

 

·   protection under 38 CFR 3.957

·   determining the ten-year period

·   protection of SC for death

·   DC change or correction of site of disability and protection of SC

·   protection of SC for disability eliminated by NSC amputation, and

·   protection inapplicable for benefits under 38 U.S.C. 1151.

 

Change Date

February 3, 2016

 

a.  Protection Under 38 CFR 3.957

Protection from severance of SC is based on 38 U.S.C. 1159, implemented by 38 CFR 3.957.

 

If SC for disability or cause of death has been in effect 10 or more years, propose severance only if

 

·   the original grant was based on fraud, or

·   it is clearly shown that the person concerned did not have the requisite service or character of discharge.

 

Important:  Protection against severance does not only require continuation of SC status.  VA must continue to pay compensation at the appropriate evaluation for the protected condition as if SC was not erroneous, except in cases of willful misconduct or alcohol or drug abuse.  

 

Notes:

·   The evaluation of the erroneously-SC-but-protected disability can be increased when supported by the facts.

·   SC can be established for a condition secondary to erroneously-SC-but-protected disability when supported by the facts.

 

Reference:  For more information on

·   severance of SC, see

-  38 CFR 3.105(d)

-  M21-1, Part III, Subpart iv, 8.E.2

-  M21-1, Part III, Subpart iv. 8.E.3.a

-  M21-1, Part III, Subpart iv, 2.B.4

-  M21-1, Part III, Subpart v, 1.D.4.a, and

-  VAOPGCPREC 6-2002, and

·   willful misconduct based on alcohol and drug abuse, see

-  38 CFR 3.301

-  M21-1, Part III, Subpart v, 1.D

-  M21-1, Part IV, Subpart ii, 2.K, and

-  M21-1, Part III, Subpart iv, 4.I.2.h, and

-  VAOPGCPREC 2- 1998.

 

b. Determining the 10-Year Period

Measure the 10-year period

 

·   from the effective date of SC, not the date of the rating,

·   to the effective date of the actual or prospective severance.

 

A recent erroneous award of SC made effective 10 years in the past is the equivalent of a past rating that has been in effect 10 or more years.  See VAOPGCPREC 6-2002.

 

c. Protection of SC for Death

38 CFR 3.957 provides protection against severance of SC for the cause of death, dependency and indemnity compensation (DIC) and death compensation. 

 

Protection for SC for cause of death does not apply to an erroneous grant of DIC when a rating decision determined that death was not SC.  See VAOPGCPREC 8-1993. 

 

d. DC Change  or Correction of Site of Disability and Protection of SC

SC for a disability is not severed simply because the site of a disability, or DC associated with it, is corrected to more accurately describe the correct disability.

 

Examples: 

·   A disability evaluation for degenerative arthritis under 38 CFR 4.71a, DC 5003 that has been in place for over 10 years can be recharacterized as traumatic arthritis under 38 CFR 4.71a, DC 5010.

·   SC for a scar of the left iliac crest that has been in effect for more than 10 years may be redesignated as SC for scar of the right iliac crest if the scar incurred in service was, in fact, on the right iliac crest.

 

Reference:  For more information on DC change or correction, see

·   Read v. Shinseki, 651 F. 3d 1296 (2011)

·   Gifford v. Brown, 6 Vet.App. 269 (1994)

·   VAOPGCPREC 50-1991, and

·   VAOPGCPREC 13-1992.

 

e.  Protection of SC for Disability Eliminated by NSC Amputation

Where a NSC cause necessitates amputation of an extremity, eliminating a SC disability distal to the site of the amputation that had been in effect for more than 10 years, SC of the eliminated disability is protected. 

 

Reference:  For more information on protection due to amputation see, M21-1 Part III, Subpart iv, 8.C.1.m.

 

f.  Protection Inapplicable for Benefits Under 38 U.S.C. 1151.

VAOPGCPREC 13-1996 held that

 

·   the protection of SC under 38 U.S.C. 1159 is not applicable to disabilities compensated under 38 U.S.C. 1151, and

·   such termination is not subject to the requirements of 38 CFR 3.105(d)  regarding severance of SC, but is subject to similar requirements for due process and appellate rights (38 CFR 3.103) and revision of erroneous decisions (38 CFR 3.105 (a)).

 

Reference:  For more information on benefits under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.

 

Edited by Vync
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