TBI Rating Reduction

[Joe30045]

    Got a letter from the VA. The DECISION reads: "Evaluation of traumatic brain injury with anxiety disorder, not otherwise specified, which is currently 70 percent disabling, is proposed to be decreased to 10 percent." It was originally granted at 70% on 02/01/2013 with an additional 30% added for migraines on 05/02/2018. VA did a Mental Disorders examination on 4/16/2018, a Review Evaluation of Residuals of Traumatic Brain Injury examination on 1/13/2020, and a Mental Disorders examination on 2/25/2020. None of the exams lasted more than an hour, and, according to the letter, these exams have apparently noted some improvement in those conditions. 

    I am not familiar with the appeals process. Should I request a personal hearing? Just send my rebuttal to the VA? Will my wife suffice as a witness? Do I need a lawyer/representative? Do I have any recourse under the "5 year protected" rule?  

Thanks for any help!

[broncovet]

Yes.  You came to the right place.  I will post the "protections" and, yes they apply at 5 years OR if you are P and T.  Remember this is a proposal not a reduction, but you do need to take action, or you will be reduced.  

First, read this carefully, probably several times:

Quote

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

Pay particular attention to the bold and underlined portions.  Your proposed rating reduction should give you instructions.  Are you represented?  If so, contact your representative immedaitely.  Now, you are entitled to a hearing, and at least one attorney suggests just that, ESPECIALLY, if you have a representative to go with you.  

You need to get a copy of your medical records.  

Check to see if:

1.  The exam resulting in the Proposed Reduction (PR) was as thorough and complete as the one where benefits were granted.  

2.  Are they trying to reduce you on one exam?  That is prohibited unless other exams showed improvement also. 

3.  Did they demonstrate you "actually improved" under ordinary conditions of life?  Did you go back to work?  If not, see the above where it says that they cant reduce you if you get better with "prolonged rest", and that means you are not working.  So, it will be tough for them to reduce you if you are not working.  

4.  Remember the burden is on VA to show "actual improvement".  Also, if your rating was continued in 2018 (and it was, if they increased you!) they have to show you improved SINCE 2018.  

5.  It may not be a bad time to get a representative, if you dont have one.  

6.  The regulation makes it crystal clear you are entitled to the benefit of the doubt.  

Edited March 25, 2020 by broncovet