Possible proposal to reduce

[grayling12]

I'm getting ready to file for Sleep Apnea secondary to PTSD, MDD, Alcohol Abuse and meds to treat. I know they are going to open and review existing mental claims. I suspect when they do, they might propose a reduction because my shrink likes to paint a sunny picture in my treatment notes, his notes are contradicted by my therapist notes and all of the assessments I have had. I see my therapist for 4 hours in 4 months and my shrink for 30 minutes in 4 months.

Questions:

1. How far back do they usually look to determine if you have made sustained improvements? 2 years, 4 years, entire history?

2. If I do get a proposal to reduce, would it be beneficial to take my VA treatment records to an independent, Dr. level Psychologist and see if he can opine whether he believes I've made substantial improvement from looking at all of my records?

3. Would this opinion even be considered by the VA?

4. I'm not trying to imply that they are going to go out of their way to get a reduction. I'm concerned that my shrink notes might be a problem and want to prepare just in case.

Thanks for any info!

 

Edited January 4, 2023 by grayling12

[brokensoldier244th]

If you give an approx time when it started then usually about that far, otherwise , all of it to find when it started

 

Yes, same as for any claim, though you’re going to need a sleep study or a disgnosis to say that you  have Sleep apnea vs any number of other sleep issues rooted in MH issues. 

Yes, same as any- evidence is evidence but someone from the local Quick Treat at Walgreens isn’t going to carry as much weight as a doctor or specialist

 

 

 

[Phury & Rhage]

Hi there,

There is something I am seeing more and more in decisions - usually in claims/appeals for increase.  The decision maker says that there is evidence of improvement in the condition, but it is not considered sustained improvement.  Be careful when you see that.  If the next exam can be said to show improvement, that is the basis for a proposal.  If you get that statement in a decision, I don't think it is too early to go for a private exam.  My opinion only.

Good luck,

Phury

[broncovet]

Good questions.  In short, its very difficult for VA to reduce you especially if you are P and T or OVER 5 years at your current rating.  

1.  They "go back" to the exam given to you where benefits were granted.  I dont know how long ago you had a c and p exam, where the end result was you were granted benefits, but, if its important to you you can look it up.  

Also, (importantly), if you were awarded or denied, other issue benefits, and your "current rating was continued, that means you "did not have improvement" until then.  

So, check your last decision when your benefits were denied, awarded, etc., and, rememeber, that means "it was adjuticated" by the VA "your condition had not improved" as of that date of decision.  

2.  Perhaps..but it sounds like the cart before the horse.  If you get a proposal to reduce you can request a hearing, and simply ask them, "which exam" or exams was it that compelled you to reduce my rating.  Then, you can hire an IMO to rebut those exam(s) as needed.  

3.  Yes, the VA is required to consider "the entire record".  Re read the criteria for reductions:  It states:

Quote

3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. 

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

4.  If you continue reading the link, above, you will see that, in order to reduce you VA has to show "you had actual improvement under ordinary conditions of life".  It explains that "prolonged rest" is not ordinary conditions, because "ordinary" people dont get prolonged rest, they have to get up and go to work, often reinjuring themselves, or stressing mental health conditions at work, which can trigger mental health symptoms at work.  

Edited January 4, 2023 by broncovet

[broncovet]

I will give an example, of what I indicated, above.  

Hypothetical case, only.  

   You were awarded 50 percent for PTSD 11 years ago, where your LAST medical exam (before this award) was 12 years ago.  

   Then, 3 years ago, you were awarded Tinnitus, and TDIU.  "And, even if it did not so state", your PTSD rating was continued, because the VA has a duty to tell you if your condition improved, and they said the opposite, by continuing your 50 percent PTSD rating, 3 years ago.  

    So, the VA decides that you deserve a reduction, because 4 years ago, a doctor mentioned you "were better".  

    The judge should throw this reduction out.  The VA, decided 3 years ago, your condition had not improved, NOW, they changed their mind and decided it did improve,  4 years ago, and you deserve a reduction.  NO.  A final decision means just that.  To overturn a final decision the VA has to prove CUE, not a difference of raters opinions.   It has to be one way or the other..you either improved or you did not, and VA already adjuticated that you had made no improvement 3 years ago, so they cant backtrack their own words.  (decisions).  

[brokensoldier244th]

It also depends on how long you have had your other ratings- the bar is higher at 5, again at 10, and 20 years is "can't be reduced unless fraud was involved", unless VA determines a CUE on their part. We are required to correct a record/submit for review any claim we find if we find a major procedural error or misapplication of regulation that might result in a ratings error. I've found 3 in my last 3 yrs that looked to be ratings or major procedural errors when compared with the totality of the record. 2 went up, one went down. 

Edited January 4, 2023 by brokensoldier244th

[El Train]

I'd be afraid they claim to find an error in some of my ratings and reduce.  I have some very high ratings that I was even surprised to get.  If I was close to 100% or smc, then I'd go for it.  But I'm both of those.