Percentage of Service Connection Based on Current status or Severity

[blahsaysme2u]

I just had a very interesting conversation with my VSO and wanted to check out the truth of the matter. I have never heard this argument nor does it make sense to me. 

I am trying to get an increase for my migraine headaches. I was having headaches 3-4x a week! with at least 1 prostrating(i would not be able to do anything, would have to go lay down and be away from noise or light or distraction due to the pain etc). I filed for migraine claim and they denied at first then gave me 0%. Now i am trying for increase. Now my VSO says i will never get the increase because i am on medication.

I have been seeing a neuro doc at the va that gave me meds that have been a miracle. I have not had a migraine in a few months now. It has been amazing. 

so my question: i don't see how getting treatment for something changes how my va rating should be. if i lost a limb and they gave me a prosthetic, they wouldn't take away Service Rating or decrease that? How about sleep apnea; I dont get less service connection because i use a CPAP, i get more?!?!? shouldn't the fact that i require medication for the rest of my life to manage migraines show a worse condition? My VSO said its the same with blood pressure, that if you take meds and its managed then you lose your SC. is any of this true? 

I gave a hypothetical: what if they discover a magic pill that cures all us vets from PTSD but we have to take these pills for the rest of our lives. that means we would all loose our service connection for PTSD if we start taking them? what if we missed a dose? what if they get lost in the mail? (which has happened with my meds plenty)

i just can't wrap my head around this flawed logic of a treated disability is no longer a disability. 

Thanks guys

[broncovet]

A CAVC case search on "reductions when controlled by medications" turned up 73 cases.  So, as always, its complicated and there isnt an easy answer.  I suggest you "go for it" and let VA deny you or try to reduce you because medications controll your issues.  

My humble opinion, is that VA wont be able to get away with that, if you appeal.  

http://search.uscourts.cavc.gov/search/

Quote

Think about it.  Ok, Mr. Veteran, so you lost your leg with an IED and you want benefits.  What for?  Gee, we gave you a wooden leg and you seem to be getting around just fine with that.  

This sounds like your VSO.  

 

 

Edited October 8, 2020 by broncovet

[blahsaysme2u]

that was my thinking and i just cant believe that could be the standard. i'm going to look at the search results on cases that you found and see what they say.

 

[blahsaysme2u]

3 hours ago, broncovet said:

CAVC case search on "reductions when controlled by medications" turned up 73 cases.  So, as always, its complicated and there isnt an easy answer.  I suggest you "go for it" and let VA deny you or try to reduce you because medications controll your issues.  

My humble opinion, is that VA wont be able to get away with that, if you appeal.  

http://search.uscourts.cavc.gov/search/

the link you gave is not working for me. also what did you search for to find those 73 cases? thanks bud!

[Berta]

The link didnt work for me either.

However the BVA has multiple results when I searched under medication reductions when controlled by medications but not all of those cases will help.

 

Here are two of their recent decision of those cases:

https://www.va.gov/vetapp20/files4/20029718.txt

https://www.va.gov/vetapp20/files3/20017590.txt

They show why one case was denied and why one vet succeeded-the second case above.

The vet was reduced from 70% SC PTSD to 10%.

The BVA stated:

"As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Additionally, 38 C.F.R. § § 3.344(a) and (b) govern reductions for ratings in effect for five years or more. For these claims, VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993)."

And

"In light of this evidence of record, the Board finds that the AOJ failed to base the reduction decision on a review of the entire recorded history of the condition and adequately determine whether any improvement in the Veteran’s condition actually reflects improvement in the Veteran’s ability to function under the ordinary conditions of life and work.   See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993).  Such an omission is error and not in accordance with the law.  Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324.  Accordingly, the 70 percent rating assigned for PTSD under DC 9411 is restored."
 

 

[blahsaysme2u]

so are they saying "that improvement in the Veteran’s ability to function under the ordinary conditions of life and work" is not equal to being treated with medication? sorry i have a hard time reading through these opinions and "legalese" 

[Slick]

Service officers come in different flavors. Some ar real good and some are not.

I had one whgo could not ID prtesumptive disabilities for Agent Orange.

File and if necessary appeal.  Nothing tried, nothing gained.

Also check Board of Veterans Appeal for similar appeal cases and how they adjudicated.