va severing service connection due to cue

[edwards7986]

the va said they are proposing to sever a service connected disability due to a clear and unmistakable error.(not fraud) this drops me from 100 to 90 percent. do i have to pay back the 1300 dollars a month more  i recieved for 10 months at the 100 percent rate vs the 90?

[Vync]

Good info from everyone. I have been through this personally quite a few years back.

The VA says they want to propose cutting your benefits. You have a small window of time to respond. Don't delay!

I submitted my evidence proving my rating should be continued. The VA ignored it and cut my rating a couple of months later. The reduction in payments began the month after the decision, so I didn't have to pay back anything. I filed for reconsideration (can't do that any more) and they ignored that. Before the one year NOD window expired, I ended up filing a NOD and asked for DRO review (now handled as a HLR). About two years later I met with the DRO. They reviewed what happened and said the VA employee who did it made a stupid decision. They corrected the rating and I got back pay.

Moral of the story is evidence wins claims. If they propose to reduce, let the evidence determine if the reduction is warranted or just more VA red tape.

 

[edwards7986]

@Vync i appreciate your reply and advice. i will go through the motions. not really a fight. just going to let the evidence say yay or nay. not much i can do

[Redd89]

With any proposed adverse actions always read the entire letter the VA sends.  On proposals you have 30 days to request a hearing and the VA will not, (should not), reduce the benefits prior to the hearing.  If request for hearing is received after the 30 days, then a hearing will still be held but the final action can take place prior to the hearing.  During this Covid period if a hearing has been requested after the 30 days you can request a "skype" formal hearing which are recorded and transcribed.   As far as repaying anything, letter that proposed the severance should have advised you of this if that was what they were planning to do.  Something like "this may create an over-payment". 

[broncovet]

How long have you been rated?  This is a big deal.  There are protections at 5 years (or P and T), 10 years, and 20 years that the VA hopes you dont know about.  Disappoint them, and read these several times until you understand them:

Quote

38 CFR § 3.344 - Stabilization of disability evaluations.

• CFR

prev next

§ 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.

 

[Redd89]

10 hours ago, broncovet said:

How long have you been rated?  This is a big deal.  There are protections at 5 years (or P and T), 10 years, and 20 years that the VA hopes you dont know about.  Disappoint them, and read these several times until you understand them:

 

One thing to keep in mind when looking at the 5 year stabilization is that the VA does not alway rely on a new exam.  For instance, they may have service connected a condition and then have another C&P exam 5 years later but have VAMC records they site which "show" improvement and use this for the proposed reduction.  It is here where the argument is used there is no material improvement and you cant reduce on an exam that is less thorough than the one that was used to grant the benefit.  

[Buck52]

20 minutes ago, redd899 said:

One thing to keep in mind when looking at the 5 year stabilization is that the VA does not alway rely on a new exam.  For instance, they may have service connected a condition and then have another C&P exam 5 years later but have VAMC records they site which "show" improvement and use this for the proposed reduction.  It is here where the argument is used there is no material improvement and you cant reduce on an exam that is less thorough than the one that was used to grant the benefit.  

They still would need to send the veteran to a C&P Exam and most likely twice.

A Veteran has no control over what the Dr's and therapist put in their medical reports  for the veterans when he goes to his scheduled appointments but he can rebut these reports if they show he has improved on his conditions What he is service connected for .

its always a good Ideal for the veteran to wait 3 days and look in myhealthvet progress notes to see what these Dr's & therapist are writing in their reports?

  if it shows an improvement then the Veteran can ask his Dr or therapist about it and disagree if he has not shown an improvement in his S.C. Medical condition/disability.  Veteran can ask why did you say this Dr when you know its not true  ect,,,ect,,,ask for the Dr statement to be amended/correction 

if the VA sends the veteran to a C&P he has to go to it

and  that is on the veteran to prove that his condition has not improved and unfortunately he has to get a new IMO and ask the Qualified Dr ( preferred  Specialist )  for his medical opinion on his service connected condition using the VA Guidelines as to rather or not his condition indeed as shown improvement or worsen or stay the same.by examining the veteran and reading his per-taint medical records to what condition is in question.

It is a hassle for the veteran to have to do this and sometimes expensive but most of the time he keeps his benefits if he does.

  if he does nothing then yeah they may go though with the reduction but there is a lot the VA HAS TO DO BEFORE THEY REDUCE BENEFITS.

some times these proposal to reduce our benefits back fires on the VA and the Veteran ends up with an increase rather than a reduction in his benefits.

being age 55 helps but not always .

normally they leave a 100%P&T VETERAN ALONE if he has had his .S.C. Condition over 5 years  and 10 years and over age 55  the 5 year and 10 year rule helps as broncovet mention.