Fear of Reduction Wait Read This

[pacmanx1]

I Knew I read it somewhere but it is better to let you read this than me telling you and then can't back it up.  VA tried to reduce this veteran's claim while still in appeal status.  It is called a "Mischaracterization of the Issue on Appeal."   See AB v. Brown, 6 Vet.App. 35, 39-40 (1993). There are rules and laws to reduce a rating. 

To hold otherwise would leave the door open for a possible "chilling effect" in the administrative appeal process, whereby veterans might be afraid to seek higher disability evaluations on appeal, for fear of having already awarded benefits reduced by the Board during the appellate process.  See, e.g., 38 C.F.R. § 3.2600(d) (2013) (except in cases of clear and unmistakable error (CUE), a decision review officer "may not revise [an AOJ] decision in a manner that is less advantageous to the claimant than the decision under review").  Such a result would be wholly 2 inconsistent with the non-adversarial claims system.  See Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992) (noting the "basic principle of the VA claims process that claims will be processed and adjudicated in an informal, non-adversarial atmosphere"); see also Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) ("The VA disability compensation system is not meant to be a trap for the unwary . . .").

[broncovet]

Thanks, Pete.  I have been telling Vets this, but I am so glad you posted the case.  

In spite of this, many VSO's and VA employees still rely upon "fear of reduction" to keep Vets from applying for all the benefits they deserve.  You hear it all the time:

"Dont rock the boat".

"Dont poke the bear"

"Leave well enough alone".  

Its all inconsistent with the regulations.  Thanks for posting this!!!!!!!!!

[Vync]

@pete992 that goes straight to the heart of the frustration what we and many other veterans have and (unfortunately) will experience:

19 minutes ago, pete992 said:

VARO employees either don't understand or don't care.  We the veterans get upset, frustrated, irritated and or maybe pissed when we get a bad or stupid rating. We veterans call the VARO wanting to get our claims corrected but Peggy on the 1-800 number really can't help or try not to help because they don't want to get cursed out or threatened if they don't have the answers. VA employees can also be vindictive (I know they are not supposed to be) but it happens more often than not.

 

Doesn't your original post apply only to issues that are actively being appealed? (at least the first citation)

 

[Miken2c74]

I believe that if you file your claim in truth you really don't have to worry about reduction. It could be a possibility it will end up in a increase. Preparation is key for whatever VA may throw at you. I understand there maybe a possibility VA may deny all claims. The decision letters are always for the most part a good vision of what VA finds favorable and what may have been the deciding factor for the denial/approval respectfully. I still say your lay statement helps a great deal. I am going to give a class hopefully in the near future on the construction of lay statements to the Vets here where I work.

 

[GBArmy]

Mike I tend to agree with you, I mean, I certainly hope that the VA is staffed with people that are not totally out to reduce benefits. I believe that there is a strong culture to deny , or at least try to keep the amount of the award rating low on the claim, but I hope they don't try to reduce just because you submitted a claim. That said, I do believe that you don't just throw stuff against the wall and see if the claim can stick. To me, that is just an invitation to the VA to teach you and others a lesson. I think that the veteran should try to get any disability claim that he or she is rightfully entitled to, but that means you have an obligation to submit a properly constructed claim. You have the 3 Caluza triangle elements. By the way, you say you will be giving a class in the near future to help other veterans; I think that is great and commend you for doing that. Keep up the good work, brother.

[Miken2c74]

Thanks @GBArmy

Yeah man this what I have to offer. I firmly believe that a clear and accurate lay statement can tip the scale of adjudication.

[Miken2c74]

5 minutes ago, pete992 said:

I understand about lay statements, but there are times when veterans needs medical opinions.  Lay statements are good for things that the veteran and or family/friends can observe like migraines but mood disorders would still need a medical opinion even though lay statements could help.  With lay statements the person(s) making the statement must be found credible or the whole claim/case goes out the window.

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