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

[Stayfocus]

On 6/25/2022 at 4:36 PM, Jake206th said:

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?

 

 

 

If they do, make sure you have an attorney and file a response immediately!

[Jake206th]

Update

So I received my decision. And now have a clearer picture of what happened.

Starting from the beginning;

Earlier Effective Date HLR appeal filed > EED HLR closed and returned for duty to assist error for new c&p medical exam > Becomes a supplemental claim and a new Exam for a DBQ Medical Opinion was ordered > DBQ medical opinion completed saying my condition hasn't changed, and that the previous exams were complete and for adjudicator to refer to them > I recieve a new VA Decision.

New VA decision stating that new and relevant evidence had been received, and that my claims had been reconsidered, and the 100% rated condition was continued. No comment on the earlier effective date for that 100% awarded condition because that Earlier Effective Date HLR claim was closed when they found a duty to assist error and returned it, and it turned into a supplemental claim. SMC for 100 plus 60 confirmed and continued. EED for SMC denied, of course because they didn't consider the EED for the underlying intertwined 100% rated condition. Education benefits confirmed and continued, EED for Education benefits denied, of course because they didn't consider the EED for the underlying intertwined 100% rated condition.

Timeline: HLR filed May 2022, HLR returned and closed June 2022, new exam completed in October 2022, supplemental claim decision in November 2022. Delay was the on the exam side.

My observations: This was all under the AMA. There were no favorable findings listed in the decision letter, or rating notification letter. Or at least not stated as such.

I have a year to appeal to the board. I may not risk appeal for the 100% EED back pay because I have minimal medical record and medical findings in my exam DBQ's to support 100% severity level back to 2010. Plus the stress it causes me. It could just end up being remanded for another c&p exam and it would be back at the regional office for re adjudication.

 

 

 

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

[john999]

Maybe run this by a vet's lawyer and see what he/she says.  Are you P&T?  Are you over 55 years old?

[Jake206th]

Yes P&T, no just over 50 yrs old.

In my opinion, of course lawyers don't mind me risking my benefits by appealing so they can try to get paid. The EED appeal is fairly straight forward, and at this point I am more familiar with my claims and medical records than a lawyer would be and could file a board appeal myself.

No matter what a lawyer, a VSO, or anyone else says, the VA can put me back on the hamster wheel and remand for more exams to try and obtain evidence against a claim or appeal.

The problem as I see it is; that VA determinations that medical record evidence is insufficient to make a decision or that there was a duty to assist error due to lack of obtaining medical evidence, is entirely at the VA adjudicators discretion. And there is no instrument that requires them to substantiate it or prove that it was insufficient, it is just on their say so.

 I think the solution here is this; There needs to be law change where there is a pre determination hearing option for Veterans ANY time the VA is considering ordering a medical examination. Where the VA is required to notify the Veteran of the proposed medical exam order and if the Veteran disagrees with the VA ordering an exam, then the Veteran would have 30 days to respond and to file a medical exam pre determination hearing request. The Veteran could then be scheduled to go before a separate adjudicator who has authority to cancel the exam order and declare the medical record evidence sufficient to adjudicate the claim, and at the hearing the Veteran could argue and present medical finding evidence to counter a VA insufficient medical evidence claim. This would reduce the adversarial aspect of weaponized medical exam order game.

I would also say that as a result of medical exam order pre determination hearings, adjudicators who clearly ignored sufficient evidence and arbitrarily proposed exams in an adversarial manner or who ordered an exam to obtain evidence against a Veteran should face some points penalty or something.

If medical exams are being used to obtain evidence against claims to reduce Veterans benefits, then there should be a pre determination hearing options for medical exam orders just like there is for reductions.

 

 

 

 

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

[allansc2005]

Are the "rules/laws" pretty much set in stone?

 

It's always been my understanding that a reduction can happen ONLY after certain conditions exist, namely:

1. Fraud was suspected AND proven to get and/or increase those benefits.

2.A medical person determined that a particular condition has improved; usually this entails a mental condition such as depression, anxiety..

3. A recent C&P exam determined a condition OR an associated condition has improved.

5. Then you have the age and timeline factors; 10-20-30, 55+..and so forth...

Jake206th, all these other recommendations you have seem plausible, but unless they are presently "on the books", then the laws and rules stand as they are.

 

As most of us know, the label "P&T" isn't always permanent and total, especially when a "routine" visit to the doctor who's wild with the pen, ruins your day "Joe Blow's depression is improving, and a reduction in medication is warranted.."

Your reaction: That @#$% doctor is a piece of #$%^..!!

 

Been there, done that, got a T-shirt and to hell with going back!

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

 

 

 

[Mr cue]

11 minutes ago, allansc2005 said:

.A medical person determined that a particular condition has improved; usually this entails a mental condition such as depression, anxiety..

3. A recent C&P exam determined a condition OR an associated condition has improved.

See this is we're it start. Apply for smc.

They try an order exams for increase in all your conditions.

You never apply for an increase.

They will order as many exam as they need to get the negative opinion.

You will never get a copy of any of the Comp exams.

Now you trapped.  Veterans must be aware and on top of there issues.