Proposed Reduction from 100% to 40%

[VietNamVet1969]

What is advisable to do following the receipt of this letter of proposed reduction in disability rates?

 

After 3 1/2 years and just visiting an outside, C&P doctor, (QTC Medical), I received a letter from the VA to reduce my 100% temporary disability. 3 1/2 years ago I underwent a radical prostatectomy, (surgery removing all they could find of prostate cancer).  A week after visiting this outside doctor that the VA ordered, came this reduction letter. When I read the conditions under which the VA can reduce a disability it reads as follows:

1. The VA must determine whether there has been an actual change in the disability since the last rating decision.

Prior to surgery my PSA reading reached a high of 5.6 and for the last 3 1/2 years there has been only the very slightest of changes varying from  >0.10 and <0.10 and nothing more or less than these numbers and symbols on myhealthevet.

2. The VA must determine whether there has been an actual change in the disability since the last rating decision

Again, only the slightest changes, as above, have occurred since my surgery

3. The VA must outline the time period during which the condition is said to have materially improved

I cannot find in their letter any specific range of time for improvement. Directly below is their letter in full without actual dollar amounts:

We have enclosed a copy of our rating decision for your review. It provides a detailed explanation about our proposal, the reason for it, and the evidence considered.

We have reviewed medical records concerning your service-connected conditions and noted some improvement in your Malignant growth of genitourinary system. Based on this evidence,we are preparing to reduce your prior evaluation of its overall disabling effect. The combined evaluation for all of your service-connected disabilities will drop from 100% to 50%. This proposed action does not affect your entitlement to treatment for service-connected conditions. We propose to reduce your monthly rate of compensation from $$$$ to $$.

We have reviewed medical records concerning your service-connected disabilities and noted some improvement. We propose to reduce our evaluations of the disabling effects for conditions as follows

        Malignant growth of genitourinary system    100%    40%

Please keep in mind I have a 5" scar, which was re-measured at this outside C&P exam, ED and incontinence at 5-6 Depends daily and the same number of bathroom visits nightly.

What's my next step? If I've missed anything just ask please

 

Edited December 18, 2020 by VietNamVet1969

[Berta]

This veteran ( you are not alone) was denied a restoration of his rating:

https://www.va.gov/vetapp20/files3/a20002399.txt

There are over 200 BVA decisions on proposed reduction of prostate cancer in the last two years:

https://www.index.va.gov/search/va/bva_search.jsp?QT=Prostate+cancer&EW=proposed+reduction&AT=&ET=&RPP=10&DB=2020&DB=2019

However -----
This veteran had his 100% restored:

This fact was highly relevant in the BVA decision:
"FINDING OF FACT

The agency of original jurisdiction (AOJ) reduced the rating assigned to service-connected residuals of prostate cancer without first obtaining an adequate examination report.  "

"Under these circumstances, the reduction in the disability rating for the Veteran’s residuals of service-connected prostate cancer was not proper and the reduction from 100 percent to 40 percent is void ab initio.  See Kitchens v. Brown, 7 Vet. App. 320 (1995).  Accordingly, the Board will restore a rating of 100 percent, effective August 1, 2015."

https://www.va.gov/vetapp19/files4/19124824.txt

You need to obtain a copy of the QTC exam, ASAP  in order to fight this reduction.

Google the QTC doctor to see what qualifications they have to opine on this disability-

as the exam might not have been adequuate.

The search feature above  will reveal the 200 plus decisions the BVA made - but although they are for the same disability, they are only binding on the veteran they were rendered for- but still BVA decision hold a wealth of knowldge ( the awarded one above holds a CAVC  case citation) and they will help you determine how to approach this.

We usually see a reduction after 6 months of the Temp 100%for prostate cancer- the fact that you kept the 100% for so long, tells me, your residuals were more serious than most vets have.

Do you get SSDI and if so, is that solely for the prostate cancer?

The VA should have included the rating schedule for residuals. You need to focus on that,to see why the QTC doctor's exam garnered the proposed reduction.

Also go over the Evidence List, to see if they considered your evidence properly.

Or if they listed it, maybe they did not consider some of it at all.

Edited December 19, 2020 by Berta
weather problems with PC

[VietNamVet1969]

16 hours ago, pacmanx1 said:

My suggestion would be making sure you fully understand what is going on. If this is a proposal to reduce then file for a hearing if you disagree and if this is a straight-out reduction, then file a NOD, there is a big difference.  As Bronco pointed out to me the other day, a veteran can not file a NOD on a proposal to reduce but the veteran must request a hearing if the veteran’s symptoms does not warrant a reduction. As to your combine rating. You should consider all other conditions/disabilities that you may be experiencing in filing additional claims. Mental health disorders, respiratory disorder, heart disorder or disease and any other condition that could be link to your military service or your already service-connected disabilities. The way it was explained to me is that when a person goes through some type of chronic issues, they most likely have some type of depression issues. Depression issues does not mean that you are mental, but it means that you have extra stress that the average individual does not have and since it was/is military related, you should be compensated for it. A lot of veterans overlook the mental health part because they do not want to be labeled but it is a legitimate condition/disability/handicap that a veteran should consider in filing a claim for.

Also, if you a not currently working and if you can not work due to your service-connected disabilities you should consider filing for TDIU(TOTAL DISABILITY INDIVIDUAL UNEMPLOYABILITY) and SSDI (SOCIAL SECURITY DISABILITY INSURANCE).

Agent Orange Exposure | Veterans Affairs (va.gov)

Thanks pacman1,

I am retired civil service, have done mental health counseling and they determined I have no mental disorders other than a manageable level of stress from outside the military, non-service-connected, I have never suffered from depression other than a longtime relationship that we both agreed was best to end it, as I am just not prone to that sort of thing, I have documented hypertension which is below the diastolic and systolic rates to collect a disability, I have non-service-connected dual rotator cuff surgery done by the VA and again non-service-connected. I do have Psoriasis but again non-service-connected which began, about 10 years after returning from Vietnam, and was exposed to Agent Orange but they haven't connect it yet and maybe never will. I am being paid for SMC conditions secondary to Prostate cancer, which has subsided to 0.10 post surgery and remained at that level for 3 1/2 years. I don't question any of the above other than Psoriasis so that's going nowhere at this point.

My original claim for constant pain and burning in my feet which I believe was caused by Basic Training and long marches with heavy backpacks and weapons, and continues to this day, has been turned down on an initial attempt and two appeals through a VSO. Other than 40% proposed I am only receiving 10% for Tinnitus for a total of 50%. I was only asking if this is normal and, here's the key, had they violated their findings based on the above numbered procedures they were supposed to go through. It seemed to me that they had not followed procedure to make their decision to reduce benefits.

 

 

11 hours ago, Marine Corp 69/70 said:

Did you do the claim yourself or did you used a VSO or somebody else with the prostate cancer claim, because you should have had SMC K from day one. I would talk to a lawyer that deals with Agent Orange claims ( good luck)

VSO and I am getting payment for SMC's at now a 40% level

[VietNamVet1969]

1 hour ago, Berta said:

This veteran ( you are not alone) was denied a restoration of his rating:

https://www.va.gov/vetapp20/files3/a20002399.txt

There are over 200 BVA decisions on proposed reduction of prostate cancer in the last two years:

https://www.index.va.gov/search/va/bva_search.jsp?QT=Prostate+cancer&EW=proposed+reduction&AT=&ET=&RPP=10&DB=2020&DB=2019

However -----
This veteran had his 100% restored:

This fact was highly relevant in the BVA decision:
"FINDING OF FACT

The agency of original jurisdiction (AOJ) reduced the rating assigned to service-connected residuals of prostate cancer without first obtaining an adequate examination report.  "

"Under these circumstances, the reduction in the disability rating for the Veteran’s residuals of service-connected prostate cancer was not proper and the reduction from 100 percent to 40 percent is void ab initio.  See Kitchens v. Brown, 7 Vet. App. 320 (1995).  Accordingly, the Board will restore a rating of 100 percent, effective August 1, 2015."

https://www.va.gov/vetapp19/files4/19124824.txt

You need to obtain a copy of the QTC exam, ASAP  in order to fight this reduction.

Google the QTC doctor to see what qualifications they have to opine on this disability-

as the exam might not have been adequuate.

The search feature above  will reveal the 200 plus decisions the BVA made - but although they are for the same disability, they are only binding on the veteran they were rendered for- but still BVA decision hold a wealth of knowldge ( the awarded one above holds a CAVC  case citation) and they will help you determine how to approach this.

We usually see a reduction after 6 months of the Temp 100%for prostate cancer- the fact that you kept the 100% for so long, tells me, your residuals were more serious than most vets have.

Do you get SSDI and if so, is that solely for the prostate cancer?

The VA should have included the rating schedule for residuals. You need to focus on that,to see why the QTC doctor's exam garnered the proposed reduction.

Also go over the Evidence List, to see if they considered your evidence properly.

Or if they listed it, maybe they did not consider some of it at all.

 

 

 

 

 

 

Berta,

I will look see if i can locate how QTC looks at this disability today.

I don't know if I can obtain a copy of the exam from them but I'll call and ask next week. In the meantime I'll read your links.

I'll read up on CAVC.

The exam was done in less than 10 minutes including outside conversation about his conditions and small talk. He measured my scar, asked me how many times I changed Pull ups and asked how many times I got up to pee at night and how often I peed during the day. I told him 5-6 times on each condition. That was it.

My Prostate has been for the whole time </> 0.10 from all I can locate at myhealthevet.

I have never filed for SSDI, didn't know that was possible but am collecting Social Security monthly.

Is this what you mean by ratings schedule for residuals from ebenefits? see below and there is no mention of incontinence....

prostate cancer s/p radical prostatectomy100%Service Connected

Agent Orange - Vietnam

08/03/2017

erectile dysfunction

0%Service Connected08/03/2017

surgical scar

0%Service Connected08/03/2017

residuals of Agent OrangeNot Service Connected

tinnitus10%Service Connected04/13/2012

.....Then under Benefits I see this......

SMC (K-1) Effective Date 08/03/2017

Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (k) and 38 CFR 3.350(a) on account of loss of use of a creative organ from 08/03/2017.

Rating Date : 12/07/2020 (my appt was 11/03/2020)

 

 

 

 

[VietNamVet1969]

Berta,

After reading both cases above, (and thank you) I see now that the reason, if I understand this correctly, the veteran who was given back the 100% rating, was due to inadequate exam and not properly evaluating the number of absorbent material changes per day. I don't see that 100% will last any longer than the next 6 months per decision (meaning it's still temporary).

That my exam was inadequate I won't know until I can get a copy, and I don't believe that QTC will make that easy, but I'll know by Monday afternoon from calling them I hope. At the very least since I am using 5-6 Pull ups per day and peeing 5-6 times per night, the disability should be rated at 60% not 40%.

"According to 38 C.F.R. § 4.115a, if the number of times is between two and four, then the 40 percent rating would be correct. If the number is more than four, then a higher 60 percent rating would be appropriate."

[Berta]

I could only find one the CAVC cases in the BVA decision above:

Williams V Nicholson 

https://law.justia.com/cases/federal/appellate-courts/cavc/16-3252/16-3252-2018-08-07-0.html

It focused on the veteran's ED- a good read for any vet with similar problem getting ED properly rated.

Did you have other C & P exams since the 100% award, that continued the 100%  award?

If you did and nothing changed from their past continue 100% grant, this must definitely be a problem with the QTC examiner.....

Since you get SSA benefits now, there would be no reason to file for SSDI.

Scars are rated as in this article by CCK ( vet law firm)

https://cck-law.com/blog/scars-and-va-disability-compensation/

 

[VietNamVet1969]

2 minutes ago, Berta said:

I could only find one the CAVC cases in the BVA decision above:

Williams V Nicholson 

https://law.justia.com/cases/federal/appellate-courts/cavc/16-3252/16-3252-2018-08-07-0.html

It focused on the veteran's ED- a good read for any vet with similar problem getting ED properly rated.

Did you have other C & P exams since the 100% award, that continued the 100%  award?

If you did and nothing changed from their past continue 100% grant, this must definitely be a problem with the QTC examiner.....

Since you get SSA benefits now, there would be no reason to file for SSDI.

Scars are rated as in this article by CCK ( vet law firm)

https://cck-law.com/blog/scars-and-va-disability-compensation/

 

I'll read that link about ED, thank you.

The only in-person C&P exam prior to this recent one last month was the initial one 3 1/2 years ago. All the rest were via phone. Ok then on the SSDI I won't persue and I don't have a problem with the temporary status, only the reduction from 100% to 40% when it should be 60%