Not Sure - Would Really Like a Consensus

[harry59]

Fellow Veterans,

A couple of days ago I found out that I was awarded 100% P&T. I was at 80%, but my mental health claim (that was finally decided on) pushed me over the line. I do not have my Decision Letter yet so I do not know any specifics. Now that I'm P&T, I'm really on the fence as to whether or not I should fight for my denied secondary claims of Hypertension and Obstructive Sleep Apnea (OSA). I'm not sure for a couple of reasons:

1. I'm not sure if, at my age (62), I will ever be reevaluated for mental health, which could possibly lead to a rating reduction in a future C&P exam. Is there an age limit where the VA will not reevaluate mental health claims? I know the M-21, Part IV, states that "with only rare exceptions, veterans over the age of 55 will not be recalled for reexamination." but I'm not sure if that pertains to mental health claims.

2. As you know, DIC can be awarded to a spouse if the veteran had been P&T for at least 10 years, or if the veteran dies from a service-connected illness or injury. DIC for my spouse is the primary reason I would fight for my denied secondaries as it is likely that hypertension and/or OSA could likely be a contributing factor in death. I know the VA is looking at changing the rating schedule for OSA, which will not benefit veterans.

So, should I continue my fight???

 

Thank you to all repliers!

[Rivet62]

On 4/2/2022 at 8:28 AM, broncovet said:

There is a specific criteria for reductions, in the regulations, and "applying for an increase" is NOT a criteria for reduction.  They cant reduce you "unless you meet certain criteria", which generally means your disabilites have "actually improved under ordinary conditions of life".  

Sometimes, the VA "tries to reduce you anyway", but, "it wont stick" unless you meet the criteria.  https://www.law.cornell.edu/cfr/text/38/3.951. and

https://www.law.cornell.edu/cfr/text/38/3.344

Thanks for easing my irrational panic attacks on my pending TDIU claim.

[pacmanx1]

9 minutes ago, Rivet62 said:

I called VA about this. My question for them was, why am I going to C&P exams for my unemployability claim when I'll be 60 this year, and do I not fall under M-21, Part IV? They said since I submitted a claim for increases (TDIU) that section doesn't apply. My understanding is that M-21, Part IV applies only to VA's initiation in its random selection of C&P requirements, but since I initiated a claim then I have also initiated the C&Ps that VA requires to process my new claim. Mind you, I am 80% not 100% P&T like you so undoubtedly there is a difference there.

Another misleading misunderstanding. The VA has the authority and there is no way around it.

 

3.326 Examinations.

For purposes of this section, the term examination includes periods of hospital observation when required by VA.

(a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and supplemental claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination.

(b) Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic.

(c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination.

 

[Rivet62]

8 minutes ago, pacmanx1 said:

3.326 Examinations.

For purposes of this section, the term examination includes periods of hospital observation when required by VA.

(a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and supplemental claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination.

Right. I put in a claim for increased compensation.  What's shown above shows that the CFR section 3.326 trumps M-21, Part IV. Right?  When in doubt, look to the CFR. Right?

[pacmanx1]

25 minutes ago, Rivet62 said:

I put in a claim for increased compensation.  What's shown above shows that the CFR section 3.326 trumps M-21, Part IV. Right?  When in doubt, look to the CFR. Right?

It's not that 38 CFR trumps M-21, I am trying to point out that there are a lot of regulations. The CFR says the same thing but whenever a veteran files a claim, the VA will most likely request a medical opinion to determine the severity of the veteran's disability or disabilities, regardless of age.

Edited April 7, 2022 by pacmanx1

[Carl the Engineer]

I just watched a "Veteran vs VA" hearing.

In the hearing, the VA argues that the M-21 is just a guide.  One of the Judges counters to the VA that the VA uses the M-21 as a guide when it conflicts with other regs and uses the M-21 as law when it can or wants.  

So, any arguements either way, i.e., which reg "trumps" which reg, would be determined at the Judge level, and then whatever Judge you get.  No way to predict and outcome.

However, it was ineresting watching the plantiff's matter of fact pleading and the VA's lawyer dancing.

Bottom line is the VA can do whatever it wants and follow whichever reg it can until it gets to the Judge(s), and then they decide.

My opinion only,

Carl

 

Edited April 7, 2022 by Carl Bacon

[Rivet62]

8 minutes ago, Carl Bacon said:

Bottom line is the VA can do whatever it wants and follow whichever reg it can until it gets to the Judge(s), and then they decide.

My opinion only,

Yes. My impression is that VA decides by process according to regulation (law) by what is put in front of them to do, but the judges interpret the law.