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

[allansc2005]

Mr cue,

I'm not sure you "apply" for SMCs, you apply for increases that might result in getting SMCs.

I could be wrong on that.

 

If the veteran suspects the VA is "stacking" C&P exams for the sole purpose of reducing benefits, then there are courses of action the vet can take. 1. Contact the Patient Representatives Office and file a complaint-should be the first choice.

 

Call, or log onto the VA's website, and file a complaint with the AG's office.

Inform your rep-American Legion, VFW.., etc

 

Need copies of your C&P exam(s)? Now it's easier than before. Visit your LOCAL VA office 10+ days AFTER your C&P exam and they will give you copies; you can also file Freedom Of Information form available from va.gov.

Used to be before you had to call that dreaded 1-800 number-VA, but not anymore!

Don't let the VA make you the veteran do all the work, stay informed and make the VA do their job!

Allan 2-2-0 HOOAH!

 

 

 

 

[Mr cue]

15 minutes ago, allansc2005 said:

Need copies of your C&P exam(s)? Now it's easier than before. Visit your LOCAL VA office 10+ days AFTER your C&P exam and they will give you copies; you can also file Freedom Of Information form available from va.gov

Someone tell me if they get a copy from the regional office.

I never seen it.

19 minutes ago, allansc2005 said:

If the veteran suspects the VA is "stacking" C&P exams for the sole purpose of reducing benefits, then there are courses of action the vet can take. 1. Contact the Patient Representatives Office and file a complaint-should be the first choice.

 

Well I really don't think that will change anything because they are contractors comp exams.

Nit VA hospital use to work back in the good old days lol

As far as smc benefits if you apply day for a@a there is a Comp exam for just that.

There is no reason for the VA to open all your disabilities unless you ask for a increase rating.

The law is the VA is to inferred smc benefits with each increase rating claim.

But most of us understand how that go.

[allansc2005]

@Mr cue, the only thing that "wont change anything" is if you do nothing.

The VA isn't going to give you anything, so I have provided solutions to the issue at hand.

Truth of the matter is, if you sit around all day eating Doritos and swigging down Cobra beer*YUK* hoping the VA is going to do something without you putting forth effort, you might as well wish in one hand and drop a load in the other, NOT happening.

In my 25+ years of fighting the VA mediocracy, I have learned that the resources are there to fight and win your case, but the VA isn't going to deliver those resources to your door wrapped in roses.

If you don't know something, ask someone(like here), ask questions, get a representative.., do something!

 

"The mind is a terrible thing to waste"    -Walter Coppage

 

Allan 2-2-0 HOOAH!

[Jake206th]

On 1/12/2023 at 1:03 PM, allansc2005 said:

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

If a Veteran files an appeal it opens the record for the VA to easily order a new medical exam > Also the Board or HLR can declare a duty to assist error which creates "new and relevent evidence" for the VA to "reconsider" your rating and order a new c&p exam > the New medical exams often contain contradicting medical opinions > which creates “competing facts”, which then have to be resolved > because competing facts could indicate a “material change”, or “improvement” of a Veterans existing disability level > which might trigger a reexamination to resolve the conflict of medical information that an exam order created > which could lead to a reduction procedure, subject to the predetermination hearing rights process.

On 1/12/2023 at 1:03 PM, allansc2005 said:

but unless they are presently "on the books", then the laws and rules stand as they are.

 Laws and rules and their application are subject to legal interpretation and legal precedence, and the CAVC routinely gives precedential rulings that corrects how the Board is misapplying the statutes and regulations. Plus there are laws that are vague that the CAVC sometimes clarifies with precedential ruling which would also change how the laws and rules were being applied by the board and ro.  Additionally the Federal register changes rules occasionally. So yes rule and law changes can and do occur. Even congress changes the statutes and laws occasionally, for example the AMA.

I seem to recall that there is a thread on this forum where Berta submitted a rule change suggestion to the Federal Register during a proposed rule change session that they acknowledged or adopted, but I could be wrong.

 

On 1/12/2023 at 1:03 PM, allansc2005 said:

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

I think you are referring to: 38 CFR 3.327 Reexaminations here. And under (b) (2) of that regulation, note the words "future" and "periodic". It appears to me that "future" and "periodic" reexaminations in compensation and service connection cases are the types of reexaminations they are referring to there.

It says pretty clearly that it shall not be construed as limiting the VA's authority to request reexaminations at any time. And I am not aware of any law that says that they can not order them, but if you know of one do tell.

 

38 CFR 3.327 Reexaminations

(a)General

Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR39056aee4e9ff13/section-3.327

 

 

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

[allansc2005]

Believe it or not, the VA does from time-to-time use the "common sense" approach to things, claims..

 

In my 25+ years of dealing with, fighting with.., the VA, I've found the VA C&P system generally doesn't request claim reductions without a reason.

The main thing here is to keep yourself educated about the claims process, and it looks like you are doing your homework.

 

There isn't enough room here for me to make a "cheat sheet" of all the things a veteran can do to stay ahead of the game, rat race.., associated with claims, but I do know this: If you even think the VA is doing everything they can to ensure you get maximum benefits, then you are sadly mistaken.

 

Just another day in paradise!

 

Allan 2-2-0 HOOAH!

 

 

[john999]

VA has so many new claims to deal with I don't think they go on witch hunts to reduce 100% vets.  I think it is much easier to win claims now than back in the 70's and 80's.  Getting an increase in those days or maintaining a rating was harder IMO.  Since I was P&T I must have filed 6-7 claims for new conditions and increases.  No problem with VA wanting to reduce me.