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 . . .").

[Vync]

5 hours ago, Miken2c74 said:

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.

In general, that tends to be the case. However, it depends on the type and nature of the rating.

When veterans have surgery for an SC condition, they may request a temporary increase to 100% if they meet the criteria. After a designated amount of time, the VA may bring them back for a follow up exam. The results of the exam will determine the rating percentage they would receive going forward.

Some ratings the VA considers to as temporary. Asthma is one of them. One criteria to qualify for 60% requires being given swallowed/injected steroids 3+ times in the last year for treatment. When they award the 60%, they may include a statement saying the rating is temporary because your condition is expected to improve. After about a year, they bring you back for a re-eval. If the evidence shows you continue to qualify for 60%, then the rating is continued, otherwise you get whatever rating based on the C&P.

 

[vetquest]

Normally you will not get a reduction but that does not mean they will not try.  When I was appealing TDIU the VA called one of my disabilities service connected in error and another rated incorrectly.  They wanted to sever and reduce my disabilities.  Needless to say they got caught in a blender and wound up not getting their way.  The VA is not your friend and will sometimes do everything in their power to make your life miserable.  They claim to be a non adversarial that is there to help the veteran as best they can, believe that at your peril. 

[bellrungboxer]

This exact scenario just happened to me and I don't know if I have handled it correctly or if I need to go further. My VSO has not really given me much advice because most of their staff are new employees and I think my previous VSO got my file red flagged because he submitted a claim for every diagnosis in my STRs and didn't teach me how the process worked before filing for claims that I had not received a diagnosis. 

 

A few years ago, I was given 30% rating for migraines secondary to my TBI. During that C&P exam, the doctor asked the frequency of migraines and because I had no record, I estimated 1 per month that kept me home from work. TBI and Migraines were awarded and I began utilizing the VA healthcare to speak with a TBI doctor on related symptoms. Last year my TBI doctor advised me to record my migraines so that we would know if they were to ever become more frequent. 3 months into recording these, I noticed that I wasn't averaging 1 migraine per month, but 2 and some were days long. So what did stupid me decide to do? File for an increase to 50%.

During the increase C&P my examiner stated that things "had been stable" because I explained how during my first C&P exam I was speculating on the amount. I told him that I had since kept track and found that the amount should have been reported higher. My condition had not worsened, it was just under stated on the first examination. I wasn't asked about turning in my migraine log that I showed him, and I was assured that the rater would view my TBI doctor's notes for an appointment I had scheduled for the next day. The TBI doctor's notes corroborated everything I said to the C&P examiner and he gave me a script for Sumatriptan. 

All that to be dropped from 30% to 0% with a statement that "my condition had improved". It was reflected in my eBenefits portfolio as 0% within the 60 day period.

That decision was made in early January, and I got my TBI doc at the VA to fill out a DBQ which was submitted in January. In February, my VSO advised me to upload my migraine log and to give a statement about why the increase was made so that my point of view was reflected. A 50% rating would have taken me from 93% to 95%, so I think that played a role in the VA's determination as well.

[Vync]

@bellrungboxer I agree with @pete992's assessment. Some ratings like migraines are based on frequency. If your doc says your disability is stable, that can actually be a good thing in terms of not getting a reduced rating. However, you would probably need to take a close look at the C&P exam findings and determine which boxes they checked regarding frequency and bounce that against your migraine diary and the rating criteria. Honestly, for frequency-based ratings like migraines, when you file for an increase, documented evidence should trump whatever misinterpretation is made by a C&P doctor. In fact, check out my blog article here on increases and migraines. If you can show that you met the criteria for an increase within the past 12 months, the VA is supposed to make your effective date match the date when you met that criteria. Keep in mind that if it waxed and waned, the VA may decide to stage the rating and can assign different ratings based on different time periods. But keep in mind that for 10% and 30% ratings, they are based on an average over the last several months (several assumed to be three or four months I guess). I hope this helps and you win your increase request. Don't let the VA short change your rating! Additionally, don't be surprised if the VA grants your 50% rating and then claims it is "temporary because it is expected to improve". They are famous for crap like that. If you see that kind of wording in your decision letter, just keep the migraine diary going. If they come back a year later and tell you that they want to send you for a new C&P, just examine your migraine diary and see if everything persisted. If it did, send them an updated copy or give the most recent three and four months worth to the C&P doc. There is a good they may continue your rating if you continued to meet the criteria for it. After being deemed "stable", "not expected to improve", "P&T", or if your rating continues for five or more years, the VA really should not bring you back in for re-eval in most cases.

I 

[bellrungboxer]

The decreased rating decision was made on January 4th and I submitted a supplemental appeal the day that I received news of my 0% reduction ( January 6th). I then made the appointment to meet with my TBI doc at the VAMC to get a DBQ filled and submitted on January 30th. EBenefits shows that they changed the effective date to the date of the C&P examination (December 11th), which I thought should be the date that my request was received October 21st.

So the treatment notes from my TBI doctor on December 13th states that I have "Chronic headaches [1-2 "migraines" / month with severity 7 or 8 out of 10]" which I guess was never reviewed by the rater?

Your point about the doctor not being able to state that I deserve a higher rating makes sense, but his C&P exam notes are all over the place:

Quote

Describe the History, Onset and Course: He has SCD for migraine HAs. Last VA C&P HA exam 11-15-2018 he says HAs have been "about the same intensity but the frequency is noted that that he has 2 or more occurances a month".

...

FUNCTIONAL ASSESSMENT:  he has to leave home and rest till HA subsides. This can be as often one to two times a month and up to two to three times a month. Last time is recently on Decemeber 9 & 10.

4. Prostrating attacks of headache pain: 

a. Migraine / Non-Migraine- Does the Veteran have characteristic prostrating attacks of migraine / non-migraine headache pain? [X] Yes [ ] No

If yes, indicate frequency, on average, of prostrating attacks over the last several months: [X] With less frequent attacks

b. Does the Veteran have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability? [ ] Yes [X] No

...

7. Functional impact 

Does the Veteran's headache condition impact his or her ability to work? [X] Yes [ ] No

If yes, describe the impact of the Veteran's headache condition, providing one or more examples: please see above medical history section above

8. Remarks, if any:

this is an INCREASE exam for veterans SCD migraine headache condition. See my remarks below:

REMARKS: The severity of the veterans migraine HA condition appears to be stable since last C&P DBQ HA exam 11-5-2018. The veteran feels that the intensity of the headaches is unchanged but may be occuring more frequently. The only new information noted in the record is a private PT note on 11-21-2019 that states Dx's "shoulder pain, right (M25.511 and Cervicalgia (M54.2)". And the report adds the note "shoulder pain causing headaches". The note also remarks that the pt. has h/o migraines. The PT report continues with: "Dx - R shoulder pain neck pain, related to postural deficits,MrTP noted, over activity of muscle groups related to stress and anxiety." No other new medical information foudn regarding the veterans SCD migraine HA condition.

 

So his C&P exam is conflicting. He states that I have to be home from work because they're prostrating, but it doesn't impact my economic inadaptability...I have 2 or more occurrences a month, but he stated it is "less frequent attacks". He also then somehow confused a shoulder claim I have with my TBI related migraines. In all honesty, this doctor is in his late 70s or early 80s and had no grasp on how to use his computer...which made us run out of time on the exam.

 

So, I don't get the increase to go to 95%, and instead end up going from 93% to 89%

 

My guess is that they claimed there is no new information on file showing that I have more than 1 migraine per month average...but even without viewing that evidence that was available on December 13th, my June visit with my TBI doctor where he advised me to keep a migraine log states: "Reports HAs ~ 1x/ month, some relationship to stress". I think that would be enough to keep my 30%, and the rater is not justified whatsoever in giving me a reduction. 

 

It only gets worse from there though: 

I had another C&P exam scheduled for February 27th. After talking with the front desk clerk scheduling the appointment AS WELL AS contacting Peggy 1-800 it was confirmed to me that the new C&P was for my supplemental appeal for GERD. On the day of my appointment, I was called saying that my C&P examiner was out sick and instead of rescheduling, they put me with a new C&P examiner. When I get to the exam, I am informed that my C&P is for my migraine headaches appeal, which I have none of my evidence for. The examiner then admits she had not reviewed any of my treatment records or medical history and questioned my eligibility as a veteran...

I stopped the C&P exam at that point, stated that I was extremely uncomfortable with continuing under the circumstances and filed a statement explaining why I should be rescheduled for a new C&P exam with my VSO.

Edited March 10, 2020 by bellrungboxer
More info and clarifications

[bellrungboxer]

Ok, I'm sorry I got it confused. I'm relatively new to this cat and mouse game and was excited to finally see some hope.