Appeal 50% Dro Rating Or Apply For Increase In Rating?

tssnave · March 15, 2007

After a long, 3 year process and one really cruddy C&P exam, I have been granted 50% sc disability for mental illness through the DRO process. The check has arrived (and been cashed) and I’m in the process of sending in the other paperwork (marriage license which I sent with my original claim, insurance, trying to figure out how to set up direct deposit – again, this info went in with the original packet but I’ll spare you that rant and try to stay on topic).

However, after reading the rating decision and talking with my DAV rep I see very clearly that I fall in the 70% rating. Even though there were notes from a couple of the 70% factors, most of what was in the C&P report fell out at 50%. My GAF was 49 (which I read somewhere, maybe on this board, that a 49 GAF would correlate to 70% but apparently the VA can use the GAF as they see fit).

I believe I got 50% because I was so depressed during the C&P exam that I couldn’t think straight, didn’t answer the questions fully, and didn’t expound on closed ended questions that I should have (who knew?) so the 50% rating is in part the fault of my sc disability (what a round robin this whole system is).

The other side of that coin is that there were several areas of the rating that weren’t even addressed in the C&P exam. How can they evaluate me on that which they do not ask?!? Since I am uninsured and have only been going to my civilian primary care doc, I don’t have treatment notes and they won’t accept the ones from several years ago when I was seeing a shrink when I had insurance.

So, I didn’t perform well on the C&P exam and the C&P exam didn’t cover all of the topics used to rate mental illness and I wound up at 50% instead of 70% where my symptoms fall out.

My DAV rep has advised me to go to a shrink and talk it all out. Tell him everything that goes on with my sc mental illness and get clinical notes to give to the VA. I have that appointment set up next week. The shrink said we’d talk for 2-3 hours (much longer than the half hour C&P exam), he’d talk to my spouse for symptoms I am not clued into, and he’d write up clinical notes, though he won’t make any disability determination. That along with my most recent clinical notes from my visit to my primary doc should, according to the DAV rep, be enough to get the VA to reopen my claim and hopefully go to 70%.

I have a couple of questions about this route:

1. In my situation, is it better to appeal the 50% and provide additional independent clinical notes to show them I am really at 70% or is it better to take the 50% and try to get an increase to 70%? Please tell me why you believe either choice is best. If there’s not a clear best way to go on this please list the pros and cons of both routes (appeal the 50% vs go for an increase).

2. If I go for an increase can they back date it to the original date of the 50% rating? Does the VA recognize just how hard it is to work your psych claim when you’re a psych patient??!!??

3. If you go for an appeal do you have to go through another C&P exam or will the clinical notes suffice?

4. If you go for an increase do you have to go through another C&P exam or will the clinical notes suffice?

5. If I do have to do another C&P exam will they still consider the clinical notes from the independent shrink?

Thanks in advance for the replies.

ts

Edited March 15, 2007 by tssnave

Cavman · March 16, 2007

You can file an appeal for 70% and IU at the same time. You can do this today. You most likely will not have another c & p.

IU can only be asked for if you do not work due to your disability.

You do get free medical at any VAMC at 50%.

Cavman

tssnave · March 16, 2007

Cavman,

Thanks for the reply. I don't work full time due to my sc disability.

Why would you go for appeal vs increase in benefits?

Thanks,

ts

Edited March 16, 2007 by tssnave

sixthscents · March 16, 2007

OK, a couple points...

1. In my situation, is it better to appeal the 50% and provide additional independent clinical notes to show them I am really at 70% or is it better to take the 50% and try to get an increase to 70%? Please tell me why you believe either choice is best. If there’s not a clear best way to go on this please list the pros and cons of both routes (appeal the 50% vs go for an increase).

There is no accepting this rating, it been made, you just need to decide if you are going to appeal it or not. So basically your question here is should I appeal? Personally I would say that is up to you. Your rep is correct in that PACS (Psychiatric Ambulatory Care) will do an intake appointment and do a completely new work-up. This can be used as evidence to suppport an appeal. Further, any follow on appointments can also be used as well as independent psych evals. So, in the end the decision lies in your hands.

2. If I go for an increase can they back date it to the original date of the 50% rating? Does the VA recognize just how hard it is to work your psych claim when you’re a psych patient??!!??

If you appeal the decison, and a higher rating is granted, then they would have to go back to the original claims date. The VA does recognize this, but they are limited in the assistance they can render, this is due to budget constraints as wellas an "institutional" mindset that I personally belive shows animosity to the individual veteran. We can go on about this for days.

3. If you go for an appeal do you have to go through another C&P exam or will the clinical notes suffice?

It depends, the VA may or may not order another, but I'd say they probably would not.

4. If you go for an increase do you have to go through another C&P exam or will the clinical notes suffice?

OK, I think you are getting appeal and increase confused. You file an appeal when you believe that the rating decision was in error. You file for an increase when you believe your conditon has worsened. Since there has been a large gap between the time you filed and the decision, you may have a case for an increase. It really depends on if your condition has worsened since you had your C&P (whenever that was)... if it was 3 years ago then you may have a credible case for an increase, but I'd be willing to bet that the VA would almost automatically dismiss it unless you can substantially prove that it has worsened.

5. If I do have to do another C&P exam will they still consider the clinical notes from the independent shrink?

Yes they will, as well as any other evidence you can provide.

PTSD is a really confused rating area even within the VA. One rater will assign a rating based upon their opinion of what the case merits, while another may have a significant difference. The VA is studying several models/new GAFS that are supposed to produce much more predictable results as well as predictable ratings. When and how that is going to happen who knows. Personally, If I were you and I felt that the rating was insufficient, I would file an appeal... here's why

1. The appeal if successful would go back to the original claim date, whereas an increase would only go back to the claim date for the increase or the test or evaluation showing the worsening of the injury... so you have 3 years or so of back pay.

2. If you think the rating was in error, then that is what needs to be addressed. You didnt say that you have gotten worse you said you think the rating was too low. That being the case the logical thing to do would be to seek an increase to what the rating should have eebn.

Now... I said IF I FELT THE RATING WAS INSUFFICIENT

Again this is a really slippery area, and raters opinions differ widely on some claims. I have seen people with GAF's of 40 get rated at 30%... also I have seen others with GAF's of 60 get rated at 100%. I have given up trying to understand what formula the VA uses to determine this rating scheme. I am not sure that the raters even completely understand it, and maybe thats part of the problem. I will caution you that the VA uses the GAF, but it is not the sole component used in evaluating a claim.

Further and finally if you do file an appeal, the new rater can always decide the old rater gave you too high of a rating... and reduce it. Now this is highly unusual, and I haven't seen it happen, but it can....

so in the end its all up to you. Vike can help you here better than I, or Cruiser on VBN maybe... without further evidence to support an appeal, I am not willing to offer a reccomendation either way.

sixthscents · March 16, 2007

I forgot to add a few things...

If I was to seek an appeal, I think I would at least have the following evidence to suppport it.

1. Intake evaluation GAF (PACS)

2. IMO (Independent Medical Opinion)

3. Letters from employers/coworkers stating the effect this has had on your work performance.

4. Letters from you family and spouse stating the effects this has had on your personal relationships.. also attesting to the day to day effects the PTSD has caused

5. Letters from clergy or public officials who may know how the conditon has affected your behavior... moods etc. (for instance a man with a perfect record suddenly start being arrested, and the circumstances... etc.)

6. Letters from former employers stating why they fired you, or you gave for quitting (if possible)

7. Record of care from date of filing to now from whoever has been your shrink

8. Record of medications and their side affects, as well as the jobs you have performed and are now performing and how these side-effects impact that.

hmmm... maybe a VA emergency room visit GAF... if necessary (dont crowd the ER if you can help it)

let me think.... but you have to address not only how this impacts your career, but your social relationships, personal relationships, personal finances.... (yep if you have filed for bankruptcy etc... thats something as well) work relationships, work performance, quality of work, speed, understanding of instructions etc... further you have to address how this has impacted you day to day ability... is it safe for you to drive? Operate haeavy equipment or machinery?

like I said let me think a bit....

tssnave · March 16, 2007

Thanks for the reply.

What do you mean by "Your rep is correct in that PACS (Psychiatric Ambulatory Care) will do an intake appointment and do a completely new work-up." My rep hasn't said anything about a PACS appointment, he told me to go to a civilian shrink, which I'm doing this coming week. When, where, and how does the PACS exam happen?

Thanks for the clarification on appeal vs increase. And yes, I believe it was rated incorrectly because the information in the file from the C&P exam was incomplete. I have not had a worsening of symptoms, I just didn't get all my symptoms noted during the C&P exam.

If I appeal the DRO decision does that mean it will go back to the local DRO or to BVA in DC? My claim was decided at the local DRO level after we put in a NOD with the VA for denying my claim based on my National Guard records didn't show any treatment for mental illness, not that I ever claimed to have been seen in the National Guard but in the Army with completely other dates but hey, the VA thought that was grounds to deny and luckily the DRO was able to figure out the difference between the active Army and the National Guard and that 1980 and 1990 are not the same years!

Thanks for the detailed reply. I appreicate it.

ts

sixthscents · March 16, 2007

WOW... ok, you need to call your closest VAMC (veterans Affairs Medical Center) and schedule an intake appointment with PACS... (they're the mental health people)... they will set up an intake appointment and do a full evaluation. Then they will assign a psychiatrist and set up follow ups, etc. This is all NORMAL since you have a service connected mental health injury.... I would call them tomorrow.

Since you are rated at 50%, theres no co-pay, all your medications are free, and you get travel pay. While I would not immediately stop seeing your private psyciatric care, I would get into the VA's system, for several reasons... It establishes another independent full eval. It allows the VA to track your care and if it does worsen over time, their records can also be used as evidence, and well it's free. So, use it for a bit, and see how you like it. I dont know where you are at, but the have local Community Based Outpatient Care units that provide psychiatric support, evaluation and counseling, so it may not be necessary to go to the VAMC except for your initial intake....

Go to http://www1.va.gov/directory/guide/home.asp?isFlash=1 to find the closest VAMC to you...

I would still do the civilian shrink (IMO) see suggestion 2..

OK now since you filed a NOD, and the appeal was substantiated, and a new decison rendered, I THINK (Vike help me out here) that bascially you can simply file another NOD regurading the rating decison... at that point the DRO can either agree with your appeal, or is a Statement of Case... then you go to BVA...

I'm shakey on this since a NOD has already been filed... so check me on this, but I've always just filed another NOD in the same circumstances and they've taken the action I stated.... (Vike you can jump in here any time now....)