What are VA disability reduction methods?

[Jake206th]

HLR for EED was returned for duty to assist error based on; 38 CFR §4.70 Inadequate examinations.

The Higher level review return says that the c&p examiner did not specifically address the board remand directives even though the c&p examiner did specifically and explicitly address all of the noted board remand instruction directives.

 

They are questioning all of the basis that the original C&P examiner gave that the VA used to grant the increased evaluation of 100%, even though it was clearly sufficient.

They are questioning the diagnosis, the frequency, the symptom severity level, and the duration.

 

What are their options to reduce in this scenario?

Difference of opinion? Cue? Reduction process?

Can they bypass all of those option and just re adjudicate it at a lower rating because the decision was less than 1 year ago?

 

Does this mean that the favorable findings laws and cue laws don't apply and that they can just issue a new rating decision to revise my 100% rating without any CUE or reduction due process?

 

 

I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Edited February 3, 2023 by Jake206th

[pacmanx1]

I hate to say it, but you are jumping the gun. You have to wait for the decision and speculation can be very stressful. Let the VA do their job and then take it from there. As to fibromyalgia: 

5025 Fibromyalgia (fibrositis, primary fibromyalgia syndrome)

 With widespread musculoskeletal pain and tender points, "with or without"

associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms:

That are constant, or nearly so, and refractory to therapy 40%

That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time 20%

That require continuous medication for control 10%

Note: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.

The highlighted portion was explained to me as these symptoms could be rated separately because a veteran may still have symptoms of multiple joint pain and due to the severity of the condition/disability a 40% rating may not show how severe the veteran symptoms are.

P. S. Anyone living with chronic pain will most likely have some sort/kind of depression.

 

Edited June 30, 2022 by pacmanx1

[Jake206th]

Ok thanks.

 I am just trying to understand the pyramiding concept better, because I am finding what appears to be contradictions between how precedential case decisions, and how the CFR appears to apply to pyramiding.

 

 

I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Edited February 3, 2023 by Jake206th

[broncovet]

It sounds like there are 2 or 3 questions here:

1.  Effective date.  Effective dates are always the later of the "facts found" or date of claim.  The "facts found" is the date the doctor says your condition began, with reference to the degree of disability.  There are, however, many exceptions on the effective date(s).  One example is if you apply within a year of exit from service, still another is if the claim was for an increase.  

    To repeat, "if" your medical records show an effective date prior to 2021, then an appeal to the BVA is in order.  If your medical records show that you dont have evidence of your disability (with respect to your degree of disabiity), then you will need additional evidence to support an earlier effective date claim.  That is, you will need another doctor to opine that your records demonstrate you have had this condition prior to 2021.  

2.  Reductions.  In addition to the regulation posted, regarding "revision of decisions", there is another protective regulation, 38 CFR 3.344 "stabilization of disability ratings".  

https://www.law.cornell.edu/cfr/text/38/3.344.  Its my humble opinion that VA likes to complicate the issue with 2 or more regulations on reductions, so to confuse Veterans, sometimes in disregarding the other regulation.  These 2 regs could be together, but are seperated.  

Generally, if the Veteran fights a proposed reduction, its hard for VA to reduce you, especially if you are P and T, or have been rated 5 years or more.  

4.  Pyramiding.  Since I dont have a lot of practice on this one, I mostly decline to answer pyramiding questions.  

 

 

Edited July 3, 2022 by broncovet

[Jake206th]

Ok thanks. Very helpful.

So the VA closed the earlier effective date HLR, and opened a supplemental claim debating the 100% evaluation rating decision.

 

Document Type: Rule

Document Citation: 84 FR 138 Page: 138-194 (57 pages)

The AMA requires that any pre-decisional duty to assist error discovered by an adjudicator be cured and that the decision be re adjudicated by the agency of original jurisdiction.

 

 

So a readjudication wouldn't be a cue or a difference of opinion, or standard reduction process, just a re adjudication of the original decision?

I am not sure if that method allows them bypass the cue or reduction process and just re adjudicate a lower rating percentage since the decision was less than a year from when it was appealed.

 

 

I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Edited February 5, 2023 by Jake206th

[broncovet]

As Pacman pointed out, the VA has a process they must follow to try to reduce you.  Exception:  Temporary ratings, such as a convalescent 100 percent while you are getting surgery and recovering.  

I have been on hadit a lot of years.  In general, I see 99 percent of Veterans "afraid of reductions", but only 1 percent of those happen.  Personally, I dont fear reductions in no small part because I have reviewed regulations the VA must comply with, such as those Pacman posted, and the ones I posted.  Its very hard for the VA to reduce you, if you are P and T, or have been rated over 5 years.  

You see, VA carries a presumption that they did their job right, and this is both a pain and a blessing for Veterans.  In your case, its a blessing.  You see, for VA to reduce you, they would need to demonstrate "clear error" (CUE) in reducing you.  Not a judgement call.  Clear error.  OR, VA could reduce you "if you have improved".  

So, 2 things:

1.  CUE.  VA is unlikely to admit they made a clear unmistakable error in rating you.  Cant you see that makes themselves look bad?  How many people want to have a list of their mistakes published in the newspaper for your boss and everyone else to see?? Possible but unlikely.  Remember, CUE is made to be difficult to prove..its hard for us, and equally hard for VA.  

2.  Improvement.  Did your condition get better since your were rated a year ago?  If it did, then, well, perhaps you deserve a reduction, as maybe you can go back to work and make some extra money.  I would accept a reduction, gladly, if it meant I could go back to work and earn a "substantial" income. (The term for tdiu is "substantial gainful employment", not earning 40 bucks cutting your neighbors grass while he is away.).  Unfortunately, for me, and many other Veterans, our ability to earn SGE is long gone...and VA realizes this, and grants many of us tdiu or sometimes 100 percent schedular.  

If VA tries to reduce you (absent a convelascent, or temp rating), they have to show you have "actually improved under ordinary conditions of life".  In my reading, I have found that "ordinary conditions of life" means, in part, "while working".  So, if you were tdiu, and later got a job earning 80,000 a year, well, you could be reduced, but I see that as fair.  

Even that is difficult for VA to do.  There are 100 percent Vets working FOR VA.  Her last name escapes me, but her first, was Tammy, and she was a big shot at VA, and later became a congress woman.  She was, and is, 100 percent.  She is in a wheel chair, and, I think that is because she has no feet, them having been blown off by an IED.  But, she has been able to overcome her disability and earn a living.  Remember, the VA defines it as "the average persons" loss of income.  Not the exceptional one, who can overcome loosing both legs or the late Senator John McCain, who over came being a POW, but the average person.  Why should our government de incentivize the disabled from overcoming and earning a living in spite of their disabilities?  

     Even Social Security disabilty is rather generous to people who want to try to go back to work, after being declared disabled.  If I recall, your disability wont even end with social security, until you have been working a full year.  You can "try working" and, if you are unable to do so, then social security doesnt penalize you for trying to go back to work.  But, of course, if you ARE able to go back to work, and stay working more than a years worth of income, then your social security disability could be reduced.  More here:  https://www.ssa.gov/work/

     Social security disability and va disability have quite a few similarities.  The big distinction is with VA, you have to prove your disability is SERVICE CONNECTED, while you dont have to prove how you got disabled with social security, just that you are.  

     Back to VA, tho.  My advice on reductions:

1.  Be honest with VA, dont exaggerate your symptoms, or otherwise defraud VA.  

2.  As long as you have done number 1, above, you dont need to worry much about reductions as long as you simply did not get better.  

     I sleep well at night, I dont worry about reductions.  NO, I have not quite yet made my "20 years".  But, I have read the regulations and know VA cant reduce me, unless I have returned to work, pretty much.  And I have not, and can not return to work, so I sleep well.  I would rather worry about something more likely to happen, such as a drunk crash into my bedroom and kill me.  Both could happen, but both are very unlikely.  

      VA has tried to reduce me, TWICE.  Basically, they pretty much accused me of getting a divorce and not telling them, and tried to remove my spouse benefit.  I simply wrote them a letter, in response (timely) explaining I remain married, and live with my spouse continiously since 2006, when we got married.  I also had my wife testify, in writing, that we were and are, and have been married, living together as man and wife, since 2006.  Both reductions were defeated, and VA soon sent a letter informing me so.   I have no idea where they got the idea that I had divorced, especially since my wife has Champva and uses it, and we have shared the same address since 2006.  Oh well, I wrote 2 letters (one for each time VA tried to reduce by removing my spouse benefit), and knew it would not fly.  Somebody at VA has "too much time on their hands" to do something like trying to remove my spouse from my benefits, TWICE.  

[allansc2005]

broncovet, correct me if I'm wrong, but aren't there a few "iron clad" assurances that reductions are rare under these circumstances?

1. You're awarded 100%, either TDIU or Schedular, and have the classification "Permanent and Total-P&T"

2. You're over the age of 55, and your rated conditions(with a few exceptions) fall under the "10-20-30" rule.

 

Other than PTSD, it's my understanding that SC mental conditions such as depression and panic disorders, when treated by medications and/or therapy, have a high rate of being lowered, or in some cases having the compensation totally eliminated via follow-up visits with mental health officials.

 

Also, in cases of fraud, fraudulent claims.., the possibility exists to lose ALL compensation claims.

 

Just my 0.02 cents.

Allan 2-2-0 HOOAH!