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70% Ptsd / Tdiu / P&t


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#1 BlakePaigeStone

 
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Posted 24 October 2008 - 05:57 PM

Dear HadIt.Com;

I just received a letter from the VARO-St. Paul, MN stating that they are scheduling another/new C&P Examination for me. I was rated P&T on May 30, 2002; and the rating report stated that there would be no future examinations scheduled.

Why am I now receiving this letter? Does anyone know why there are service-connected examinations being scheduled for P&T awardees?

I am also in the Philippines, so will the VARO require that I take this exam at the VAMC-Hawaii or here in VA-Manila Outpatient Clinic?

Any comments, information, or suggestions are welcome. Please advise!

#2 purple

 
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Posted 24 October 2008 - 09:44 PM

Unfortunately with the VA; nothing is "P&T". From what I've heard if they schedule exams, even when your initial letter said "no further exams" it is usually after the first 10 years.

Have you reported any income to the VA? or to Social Security? if yes, either one of those would tip them off.
Has your condition improved? That could tip them off.

It could be a number of things....I try not to think like the VA does; it gives me migraines....

take care & good luck,

#3 Ricky

 
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Posted 24 October 2008 - 11:01 PM

Don't sweat it. If your disabilities are static it will be a simple review.

More that likely they will schedule the exam in Manilla.

#4 Pete53

 
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Posted 24 October 2008 - 11:38 PM

You need to find out what reason they are requiring an exam when you are P&T. Some Doc must have given a rosy report on you and they are checking on it.

If you have not improved than you have nothing to worry about

#5 rentalguy1

 
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Posted 25 October 2008 - 08:26 AM

The VA is required by law to periodically examine all of our files. It's been several years since you've had a C&P, so that's why they are bringing you in. The only truly permanent rating is the one that has been in place for 20+ years. All others are subject to change. The good news here is that your rating has been in place for over 5 years, so that means it cannot be reduced based on a single C&P exam. Sustained improvement of the condition(s) must be shown through two or more exams. I would suggest clicking the link to the Mental Health Claim Repository in my signature line and reading up on what the exam entails and what the rating criteria are. Then go to the exam as requested.

#6 vaf

 
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Posted 25 October 2008 - 09:32 AM

You didn't say if you had any other claims pending, or had anything on appeal perhaps for an earlier effective date. If you do, then it's common to be called in for a C & P to examine you based on your claim or appeal.

#7 Wings

 
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Posted 25 October 2008 - 10:41 AM

x
x
x

Here is some very pertinant material from Tbird's "Library"

http://www.hadit.com...ngreduction.htm

Oops, I tried to pull up the ducument on the given URL, but either my PC blocked it or it's a broken link.

Here's a copy and paste from a google cache:




The VA re-examination process discussed in the previous Section sometimes results in a determination that the veteran's disability has decreased in severity. Sometimes the VA seeks to reduce a veteran's disability rating, or to terminate service-connected status entirely.428 In some situations the veteran's rating, or even the service-connected status of a disability, is "protected." In some situations the VA is completely prohibited by statute or regulation from reducing a rating or severing (terminating) service connection unless fraud was involved. A veteran with a protected rating or protected service connection that was obtained without fraud is guaranteed benefits at a certain minimum level for the rest of the veteran's life.

In other situations, the VA must ensure that certain requirements are met before it may lawfully reduce a disability rating level. If the requirements are not met, the improperly reduced benefits must be reinstated. The various rules that protect veterans against reductions in ratings or severance of service connection are discussed below. For example, veterans who have been assigned 100 percent schedular evaluations, 100 percent evaluations based on individual unemployability, or veterans who have had ratings that have been in effect for 5 years or more receive special protection.



Footnotes

428.38 U.S.C.S. § 6103 provides that a person who knowingly makes a false or fraudulent statement concerning any claim for VA benefits forfeits his or her rights to VA benefits. The VA regulations that govern the adjudicative procedures for rendering forfeiture decisions provide specific procedural protections to an affected claimant. See 38 C.F.R. §§ 3.900 through 3.905 (2002). The VA will not declare a forfeiture until the VARO has sent the affected claimant a written notice containing the following: (1) a statement of the specific charges, (2) a detailed statement of evidence supporting the charges, (3) notice of the right to submit evidence or a statement in rebuttal or explanation within 60 days, (4) citation and discussion of the applicable statute, and (5) notice of the right to a hearing and representation by counsel. See 38 C.F.R. § 3.905(b); see also Trilles v. West, 13 Vet. App. 314 (2000) (good discussion of the law and procedures governing forfeiture). If the affected claimant receives an adverse decision from the VARO, he or she may appeal this decision to the Board of Veterans' Appeals and if the Board denies the claim, an appeal may be taken to the Court of Appeals for Veterans Claims. See Trilles, 13 Vet. App. at 319.




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5.9.1 Protections against Reductions after Ten and Twenty Years of Continuous Benefits or Rating at a Particular Level

If a rating level or benefit has been continuously in effect for a certain length of time, it may be protected by law from reduction or severance. For example, after ten years of the veterans continuous receipt of service-connected disability or death benefits, the VA cannot sever the benefits (that is, terminate service-connected status) unless there was fraud involved in obtaining the rating or the VA discovers that the veteran did not have the required length or character of service.429 Similarly, if a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud.430 For example, if a veteran is granted compensation based upon an original rating of 30 percent and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot thereafter be reduced below 30 percent in the absence of fraud. The twenty-year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error (CUE). That is, if a rating is "retroactively increased [based on a finding of CUE] and the effective date of such increase is more than twenty years in the past, the revised disability percentage is protected" by the twenty-year protection rule.431 (The concept of clear and unmistakable error is discussed in Section 14.4 of the Manual.)



Footnotes

429. 38 U.S.C.S. § 1159; 38 C.F.R. § 3.957 (2002).

430. 38 U.S.C.S. § 110; 38 C.F.R. § 3.951(b) (2002); See Colayong v. West, 12 Vet. App. 524, 531-32(1999) (veteran's 60 percent rating for Pott's disease that has been in effect for at least twenty years is preserved by operation of law) cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (a rating twenty days short of having been in effect for twenty years was not protected from reduction by § 3.951(b)).

431. Gen. Coun. Prec. 68-91 (September 26, 1991).




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5.9.1 Protections against Reductions after Ten and Twenty Years of Continuous Benefits or Rating at a Particular Level

If a rating level or benefit has been continuously in effect for a certain length of time, it may be protected by law from reduction or severance. For example, after ten years of the veterans continuous receipt of service-connected disability or death benefits, the VA cannot sever the benefits (that is, terminate service-connected status) unless there was fraud involved in obtaining the rating or the VA discovers that the veteran did not have the required length or character of service.429 Similarly, if a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud.430 For example, if a veteran is granted compensation based upon an original rating of 30 percent and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot thereafter be reduced below 30 percent in the absence of fraud. The twenty-year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error (CUE). That is, if a rating is "retroactively increased [based on a finding of CUE] and the effective date of such increase is more than twenty years in the past, the revised disability percentage is protected" by the twenty-year protection rule.431 (The concept of clear and unmistakable error is discussed in Section 14.4 of the Manual.)



Footnotes

429. 38 U.S.C.S. § 1159; 38 C.F.R. § 3.957 (2002).

430. 38 U.S.C.S. § 110; 38 C.F.R. § 3.951(b) (2002); See Colayong v. West, 12 Vet. App. 524, 531-32(1999) (veteran's 60 percent rating for Pott's disease that has been in effect for at least twenty years is preserved by operation of law) cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (a rating twenty days short of having been in effect for twenty years was not protected from reduction by § 3.951(b)).

431. Gen. Coun. Prec. 68-91 (September 26, 1991).

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5.9.2 Rules Regulating the Reduction of Total (100%) Disability Evaluations

Unlike other administrative actions, a reduction in a veteran's disability evaluation is not permitted merely because a later adjudicator has a different opinion on how the evidence or the rating schedule should be interpreted. A reduction in a veteran's disability rating is permitted only where certain circumstances exist and where particular legal guidelines have been satisfied.432 Before any existing disability evaluation can be lawfully reduced, VA is obligated to satisfy a variety of legal requirements. Moreover, the VA bears the burden of proof in establishing, by a preponderance of the evidence, that a reduction is warranted under the relevant regulations.433

Advocates unfamiliar with veterans law might logically think that when the VA considers reducing a total (100 percent) rating, the issue to be decided is whether the veteran's current symptomatology is equal to the symptomatology needed for the 100 percent evaluation.434 However, in the absence of clear error in its previous total disability rating, the issue it must decide is whether there has been material improvement in the physical or mental condition evaluated as 100 percent disabling.435 Without an examination that confirms such improvement, the VA is prohibited from reducing the veteran's rating.436

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The VA must compare the evidence it relied on in its most recent decision to continue the 100 percent evaluation with the evidence it intends to rely upon to reduce the 100 percent evaluation.437 In Karnas v. Derwinski,438 the CAVC ruled that if there has been no improvement at all since the date of the last examination continuing the 100 percent rating, a reduction is prohibited. In deciding whether there has been improvement in the veteran's condition, the CAVC has held that the VA may look at both medical and nonmedical evidence to determine whether a veteran's condition has materially improved.439

**Advocacy Tip** In some instances, the evidence reveals some improvement in the service-connected disability. If this is the case, advocates are advised to compare the most recent evidence with the earlier evidence used to continue or establish the 100 percent evaluation. If feasible, the advocate should argue that there has been no improvement. Alternatively, the advocate should argue that even though there has been some improvement in the service-connected condition, this is not significant enough to constitute "material improvement" because some improvement does not constitute "material improvement."

The regulations also preclude a reduction unless the improvement was attained "under the ordinary conditions of life, i.e., while working or actively seeking work."440 A private medical opinion stating that the claimant has not medically improved since the 100 percent evaluation was assigned or continued can be crucial in these cases. A common tactical advocacy error is to argue that the severity of the veteran's service-connected condition still meets the definition of 100 percent in the rating schedule. However, as stated earlier, the issue is not what percentage evaluation the current symptomatology warrants but whether the service-connected condition has materially improved. Therefore, advocates should refer to the rating schedule but not rely on it exclusively.

Even if the VA is justified in reducing a total rating after applying the rating reduction rules described above, an additional rule applies that may result in the preservation of the veteran's entitlement to benefits at the total rating level. If the VA determines that a reduction in a total schedular rating (100 percent) is warranted, but the record reflects that the veteran is unable to engage in substantial gainful employment by virtue of his or her service-connected disability, the veteran must be awarded a total (100 percent) rating based on the individual unemployability (IU) provisions of 38 C.F.R. § 4.16.441 Moreover, once a veteran is in receipt of benefits at the total rating level based on IU, the VA may not reduce the benefits unless "clear and convincing evidence" establishes that the veteran is capable of "actual employability."442



Footnotes

432. See Dofflemyer, 2 Vet. App. at 280 ("There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary").

433. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 413, 421 (1993).

434. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) ("The BVA incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellant's rating from 100% to 10% was proper."); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case").

435. 38 C.F.R. § 3.343(a) (2002).

436.38 C.F.R. § 3.343(a) (2002). Temporary 100% ratings are not subject to the general rule established by 38 C.F.R. § 3.343(a) that reductions of a total rating be based on "material improvement." See 38 C.F.R. §§ 4.28, 4.29, 4.30 (2002) (regulations governing prestabilization ratings and total ratings assigned because the veteran is hospitalized or convalescing).

437. See Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Dofflemyer, 2 Vet. App. at 280; Hohol v. Derwinski, 2 Vet. App. 169, 173 (1992).

438.1 Vet. App. 308 (1991).

439. Faust v. West, 13 Vet. App. 342, 349-50 (2000).

440. 38 C.F.R. § 3.343(a) (2002); see Ternus, 6 Vet. App. at 376; Dofflemyer, 2 Vet. App. at 280; Hohol, 2 Vet. App. at 173; Karnas, 1 Vet. App. at 308.

441. Hohol, 2 Vet. App. 169, 173 (1992); Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991); Karnas, 1 Vet. App. at 311; see also Manual M21-1, Part VI, ¶ 9.03(l).

442. 38 C.F.R. § 3.343© (2002). See Faust, 13 Vet. App. at 356. In that case, the CAVC held that evidence that indicates that a veteran is engaged in substantial gainful employment establishes that the veteran is capable of "actual employability." Id. The Court then adopted a definition for the term substantial gainful employment for the purposes of determining whether the veteran was capable of "actual employability." The Court concluded that substantial gainful employment must be employment that is more than marginal. The Court determined that substantial gainful employment is "[an occupation] that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income prior to his having being awarded a 100% rating based on individual unemployability." Id.; Olson v. Brown, 5 Vet. App. 430, 434 (1993).

5.9.3 The Requirement of Sustained Improvement to Reduce a Rating Level That Has Been in Effect for Five or More Years

Any rating evaluation that has "stabilized," that is, "continued for [a] long period[] at the same level (5 years or more),"443 whether it is at the 10 percent or 100 percent level, may not be reduced unless all the evidence of record shows sustained improvement in the disability.444

Because 38 C.F.R. § 3.344(a) requires that "all the evidence of record" must support the conclusion that sustained improvement in the disability has occurred, the VA cannot view the single examination upon which the reduction is proposed "in isolation from the rest of the record."445 In other words, the entire medical history of the disability must always be considered in conjunction with any rating examination upon which a reduction is proposed.446 In Schafrath v. Derwinski, the court explained the purpose of this rule as follows:

These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. These considerations are especially strong in a ratings reduction case.447

It is precisely because a disability is stabilized that the VA must take care when proposing to reduce the rating evaluation assigned to it. Because "such disabilities are considered ‘stabilized,' . . . the regulation thus requires a high degree of accuracy in decisions reducing those ratings."448

There are several other rules the VA must follow before reducing a rating that has been in effect for five years or more. The VA must review "the entire record of examinations and the medical-industrial history . . . to ascertain whether the recent examination [which the VA is relying upon to reduce the rating] is full and complete."449 Any examination that is less full and complete than that on which payments were authorized or continued, may not be used as a basis of reduction.450 If the disability is subject to temporary and episodic improvement, it will not be reduced on any one examination, except in those circumstances in which all the evidence of record "clearly warrants the conclusion that sustained improvement has been demonstrated."451 Even though material improvement in the physical or mental condition is clearly demonstrated, the VA "will [ consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life."452



Footnotes

443. 38 C.F.R. § 3.344© (2002).

444. Id. § 3.344(a).

445. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

446. Id.; see also Brown, 5 Vet. App. at 421.

447. Id.

448. Id.

449. Brown, 5 Vet. App. at 419 (citing 38 C.F.R. § 3.344(a)).

450. 38 C.F.R. § 3.344(a); see also Brown, 5 Vet. App. at 419.

451. 38 C.F.R. § 3.344(a); see also Brown, 5 Vet. App. at 419.

452. 38 C.F.R. § 3.344(a); see also Brown, 5 Vet. App. at 419

5.9.4 Rating Reduction in Unprotected Cases (Cases Involving Disabilities Where the Veteran Does Not Have Either a Total Disability or a Disability Rating That Has Been in Effect for Five Years or More)

Although the protections discussed above in Sections 5.9.2 and 5.9.3 are limited to total (100%) disabilities and disabilities where the rating has been in effect for five years or more,453 the advocate may still wish to argue that other VA regulations and substantive rules protect a disability rating from being reduced. In Faust v. West,454 the CAVC made clear that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect. For example:

· Any proposed reduction must be based upon review of the entire history of the veteran's disability;

· The VA must determine whether there has been an actual change in the disability;

· Any improvement must reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work; and

· Examination reports reflecting any such change must be based on thorough examinations.

**Advocacy Tip** The following argument includes boilerplate language that an advocate may wish to use in such a case.

VA regulations impose a duty on the VA to make an explicit finding that the preponderance of evidence shows that there has been improvement in any disability rating that the VA proposes to reduce. Specifically, 38 C.F.R. § 4.1 (2002) states that "[i]t is . . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 (2002) establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. . . . Furthermore, 38 C.F.R. 4.13 (2002) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms."

Pursuant to these provisions, it is obvious that in any rating-reduction case, the RO and BVA are required to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.455

Thus, the VA is required to review the entire evidence of record and to determine and make an explicit finding as to whether the evidence shows that there is an actual improvement in a veteran's disability since the last rating decision which either granted or continued the disability rating before the VA may reduce the disability rating.

In addition to these VA regulations, the Manual M21-1, Part VI, paras. 9.03(a) and (f) requires the VA to make findings that the evidence demonstrates improvement before a rating reduction is made. It states the following:

Reasons And Bases. An examination which is the basis for reduction must be as thorough as the examination which established the current rating. Cite the symptoms and the findings demonstrating improvement in the context of the whole recorded history and evidence of improved ability to function under the ordinary conditions of life and work.. [sic] In psychiatric cases, outline social and economic adjustments along with the other evidence warranting the reduced evaluation. . . . [sic]

(emphasis added).

Thus, the Manual M21-1 also requires a finding of improvement before a reduction is made in an ongoing disability rating. Therefore, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improved since the time it was either granted or continued.



Footnotes

453. See Smith (Raymond L.) v. Brown, 5 Vet. App. 335, 339 (1993).

454. 13 Vet. App. 342, 349 (2000).

455. Brown (Kevin), 5 Vet. App. at 420-21. See also Lehman, 1 Vet. App. at 342-43 (finding that the Board violated 38 C.F.R. §§ 4.1, 4.2 where the Board relied upon one medical report which drastically differed from all other evidence of record without reconciling the evidence).

5.9.5 Protection against Reductions Based on Revision of the Schedule for Rating Disabilities

The VA is required by statute to readjust the Schedule for Rating Disabilities "from time to time . . . in accordance with experience."456 However, this statute also requires that "in no event shall such a readjustment . . . cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred."457

The VA's application of this requirement, made binding by a precedent opinion of the VA general counsel, is that it must continue to apply the old rating criteria to a veteran's disability if application of new rating criteria would cause the veteran's rating level to be reduced.458 Therefore, if an examination reveals any improvement in a veteran's condition, and application of the new rating criteria would result in a reduction in the veteran's disability rating, before reducing the rating the VA must also apply and consider the old rating criteria. If application of the old rating criteria would not result in a reduction of the rating, the rating may not be reduced.459 However, the VA General Counsel has held that "when an improvement in a disability sufficient to warrant a reduction under the old criteria occurs. . . the new rating criteria should be applied. The new criteria should be applied, even in cases where their application will result in a rating reduction greater than would result from application of the old rating criteria."460



Footnotes

456. 38 U.S.C.S. § 1155.

457.Id.

458.VA Gen. Coun. Prec. 19-92 (September 29, 1992).

459.Id. at 5.

460.Id.

5.9.6 The Remedy for Violation of the Rules Regulating Reductions in Disability Ratings Is Reinstatement of the Rating

A reduction of a veteran's rating generally may not be valid if the VA fails to comply with the rating reduction rules described above. The CAVC has held that rating reductions made "without observance of law" require reinstatement of the rating.461 The court reasons that the original reduction decision in such cases is "void" from the start (void ab initio) because of the VA's failure to follow the requirements that control rating reductions.462 Because the veteran "should not be subjected to the effects of an unlawful rating reduction," such a "reduction must be vacated and the prior rating restored."463 However, in Faust v. West,464 the Court recently affirmed a rating reduction in a case even though the Court found that the BVA had reduced the veteran's 100 percent disability rating for a psychiatric condition without applying pertinent regulations. The Court reasoned that the BVA's failure to explicitly discuss relevant rating reduction regulations was harmless error because the Board's decision contained findings that essentially met the criteria of the regulations and there was overwhelming evidence to indicate that the veteran's disability rating was properly reduced.465



Footnotes

461. See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Murincsak v. Derwinski, 2 Vet. App. 363, 369 (1992); Schafrath, 1 Vet. App. at 596 (1991); Dofflemyer, 2 Vet. App. at 282; Hohol, 2 Vet. App. at 173; Schafrath, 1 Vet. App. at 595-96; Lehman, 1 Vet. App. at 342.

462. Dofflemyer, 2 Vet. App. at 282; Schafrath, 1 Vet. App. at 596.

463. Schafrath, 1 Vet. App. at 596; see also Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 325; Brown, 5 Vet. App. at 422.

464. 13 Vet. App. 342 (2000).

465. Id. at 352-53.

5.9.7 The Process by Which Running Awards of Compensation Are Reduced or Terminated

Special due process protections apply in cases where the VA proposes to reduce or terminate running awards of disability compensation. First, a claimant facing such a reduction or termination must be given prior notice of the proposed adverse action.466 The notice must be specific enough to satisfy the regular notice of decision requirements.467 Moreover, the claimant must then be given at least sixty days after the notice within which to "submit evidence for the purpose of showing that the adverse action should not be taken."468 If the claimant does not submit evidence within the sixty-day period, a final rating decision will be prepared.469 The veteran is notified of the final rating decision and the award of benefits will be reduced or discontinued.470 A new 60-day period begins from the date of the final decision. The reduction or severance goes into effect on the last day of the month on which the new 60-day period expires.471

There are a few important exceptions to the prereduction or predetermination notice requirement.472 According to a precedent opinion of the VA general counsel, the VA is not obligated to comply with the advance notice requirements set out at 38 C.F.R. § 3.105(e) when proposing to reduce a compensation award if the actual amount of compensation paid is not reduced as a result of the proposed rating reduction.473 In addition, if the claimant provides oral or written statements or information that are factual, and contain unambiguous information about income, net worth, dependency, or marital status with knowledge or notice that the information would be used to calculate benefits, no prior notice is required.474 Instead, the VA must only give contemporaneous notice of the reduction or termination.475 Also, contemporaneous, rather than prior, notice of an adverse decision is permitted if evidence "reasonably indicates that a claimant is deceased."476

Another important protection in cases where the VA proposes a reduction or termination of a running award of compensation is the claimant's right to a predetermination hearing.477 The hearing must be requested within thirty days from the date of the notice of the proposed adverse action.478 The regulation providing for the predetermination hearing specifies that the "hearing will be conducted by VA personnel who did not participate in the proposed adverse action."479 If a claimant requests a hearing within the thirty-day period, the proposed decision will not be implemented, if at all, until after the hearing takes place and the VA considers the evidence presented or developed as a result of the hearing and issues "a final determination concerning the proposed action."480

A benefit of asking for a hearing within the thirty-day period is that implementation of any reduction or termination of benefits is delayed. In compensation cases, the adverse action will never be implemented until at least sixty days after notice of the final action is sent to the claimant.481 Thus, a claimant requesting a hearing can buy at least two months of benefits at the level in effect at the time of the notice.

**Advocacy Tip** Claimants faced with a proposed reduction or termination of a running award of compensation should always ask for a hearing within thirty days of the date of the notice of the proposed decision. This request will work to prevent implementation of the reduction or termination for the longest possible period, because the adverse action will not be final until after the hearing.

The Veterans Claims Assistance Act of 2000 (VCAA or Act), which was signed into law on November 9, 2000, should impact the type of notice that is sent to claimants when the VA proposes to reduce the veteran's disability. The VCAA requires the VA to notify all claimants and their representatives of "any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim." In addition, the VA is required to explain to the claimant what evidence the claimant must obtain and what evidence the VA will attempt to obtain. Therefore, when the VA proposes to reduce a disability rating, the notice required by the VCAA should include advice as to the type of evidence both medical and lay evidence that the veteran should submit to avoid a reduction in the disability rating.



Footnotes

466. 38 C.F.R. §§ 3.103(b)(2), 3.105(e) (2002); see also Manual M21-1, Part VI, chapter 9 (due process procedures for reductions and severance of service connection).

467. 38 U.S.C.S. § 5104; 38 C.F.R. § 3.103(b)(2) (2002).

468. Id. See also 38 C.F.R. §§ 3.103(b)(2), 3.105(d),(f) (2002).

469. 38 C.F.R. §§ 3.105(d), (f) (2002).

470. Id.

471. Id. §§ 3.105(d)(e).

472. Id. § 3.103(b)(3).

473. VA Gen. Coun. Prec. 71-91 (November 7, 1991). In the particular case that produced this VA general counsel opinion, the claimant's compensation payment at the 100 percent level was unaffected even though his rating for residuals of gunshot wounds was reduced from 20 percent to 0 percent. This result occurred because another of the claimant's disability ratings was increased from 70 percent to 100 percent, thus leaving the overall amount of compensation paid to him unaffected.

474. VA regulations specify the procedures that the VA is to follow when it receives oral information from a claimant. See 38 C.F.R. § 3.217(b)(2002). The VA may not take action based on oral information or statements unless the VA employee receiving the information follows certain procedures. For example, during the conversation with the claimant, the VA employee must identify himself or herself to the claimant as a VA employee who is authorized to take the action. The VA employee must verify the identity of the claimant by obtaining information that can be verified from the claimant's VA records such as social security number, date of birth, branch of military service, or dates of military service. 38 C.F.R. §§ 3.217(b)(1)(i) and (ii)(2002). The VA employee must inform the claimant that the information or statement will be used for calculating benefits. 38 C.F.R. § 3.217(b)(1)(iii)(2002). Finally, the VA employee must document the conversation in the claimant's VA records by recording the specific information or statement that was provided, the date that statement or information was provided, the identity of the claimant or person who provided the information, the steps taken to verify the identity of the claimant, and that the VA employee advised the claimant that the information would be used for purposes of calculating benefit amounts. 38 C.F.R. § 3.217(b)(2)(2002).

475. 38 C.F.R. § 3.103(b)(3)(i) (2002).

476. Id. § 3.103(b)(3)(iii).

477. Id. § 3.105(i).

478. Id.

479. Id.

480. Id.

481. Id. § 3.105(h)(2)(i).


#8 BlakePaigeStone

 
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Posted 25 October 2008 - 04:59 PM

I also received VA Form #21-4140, (Employment Questionaire), from the VARO-St. Paul, MN which was dated August 1, 2008 ...on October 20, 2008 because the VARO had added the words "FPO Philippines 600" to my address. This caused the mail to be delayed for over 60-days ...once it was transferred to the Philippine mail system. My mailing address, of-record, is a U.S. Embassy mail system address ...which usually gets my mail to me in about 5-to-10 days.

Since this form reached me after the deadline, it may have triggered the new exam in their system ...automatically. I now have been notified that the deadline for receipt of the form has been extended to the end of December, 2008 because all veterans were not sent their forms on time. These annual employment questionaire forms are for TDIU-rated veterans only. I'm still waiting for a response from VARO-St. Paul, MN after I emailed their "completed" form to them; and sent the "completed" hard copy by U.S. mail.

#9 Wings

 
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Posted 25 October 2008 - 07:13 PM

I also received VA Form #21-4140, (Employment Questionaire), from the VARO-St. Paul, MN which was dated August 1, 2008 ...on October 20, 2008 because the VARO had added the words "FPO Philippines 600" to my address. This caused the mail to be delayed for over 60-days ...once it was transferred to the Philippine mail system. My mailing address, of-record, is a U.S. Embassy mail system address ...which usually gets my mail to me in about 5-to-10 days.

Since this form reached me after the deadline, it may have triggered the new exam in their system ...automatically. I now have been notified that the deadline for receipt of the form has been extended to the end of December, 2008 because all veterans were not sent their forms on time. These annual employment questionaire forms are for TDIU-rated veterans only. I'm still waiting for a response from VARO-St. Paul, MN after I emailed their "completed" form to them; and sent the "completed" hard copy by U.S. mail.



The VA has been pulling this crap on lots of TDIU vets this year. Sorry this happened to you --and thanks for the heads-up for all of us with that same rating (myself included). VA Watchdog has a whole story or two on the issue. Hopefully, that "extention" the VA gave you will cancell out the need for a future exam. ~Wings

http://www.vawatchdog.org/index.htm

IMPORTANT UPDATE: VA ACKNOWLEDGES DATE ERROR ON
UNEMPLOYABILITY LETTER, EXTENDS DEADLINE (10-26-08)
Date for unemployable vets to respond to income verification
letter is now extended to December, 22, 2008.
---------------------------------------------------------------------------------------
UPDATE: VA'S DELAYED MAILING CAUSES REDUCTION IN
BENEFITS FOR UNEMPLOYABLE VETS (10-23-08)
---------------------------------------------------------------------------------------
IS THE VA FAKING DATES ON INCOME VERIFICATION
LETTERS TO UNEMPLOYABLE VETS? (10-16-08)





Below is the email being sent out by the VA... and please note, IU vets now have until December 22, 2008, to respond to their Income Verification letter:



Subject: FAQ on Individual Unemployability (IU) Benefits Letter

To: NCC Managers
Cc: PCT Coaches, VSC, IRC and PMC Managers

On October 22, 2008, the Office of Field Operations (OFO) provided information and guidance on the Employment Questionnaire (VAF 21-4140) problem. Corrective action has been taken to resolve this situation.

In the interim, it is anticipated that this situation will generate questions directed to our call centers and the IRIS Response Center (IRC).

The following FAQ is to be used in answering both telephone and IRIS inquiries regarding this situation:

Question: "I received a letter from VA dated August 1, 2008, that my IU benefits are going to be terminated 60 days from the date of this letter if I do not respond. I just received the letter on (date) and the 60 days have passed. What do I need to do?"

Answer: We are aware of the incorrect date on our letter containing the employment questionnaire, VA Form 21-4140. Please complete the form and return it to your Regional Office no later than December 22, 2008. Your benefits will remain unchanged. If you do not return the form by December 22, 2008, then you will receive a letter proposing to terminate your Individual Unemployability benefits. Once you have received this letter, you will be given an additional 60 days to return the completed and signed form. If VA still has not received the form at the end of the 60 days, then your VA benefits will be reduced to your basic combined disability percentage rate.

Please ensure that this information is widely disseminated to your appropriate staffs immediately.


#10 robert51

 
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Posted 26 October 2008 - 02:58 AM

Blake .... most likley you will go to the VA in manila.. i am also in the philippines and the reason for your new CP could be are you taking your meds? and if your PTSD do you see a doctor for your service connected disability... many come to the PI and think oh well i can stop the doctor thing now i am in another country...the once a year trip to the clinic is not enough to keep up your disability status... they know your not working so they must think if your not seeking help why.. i see a private doctor 2 times a month and turn in a report every year... they will allow you to see a doctor 2 times a month for service connected disability thru them .. but i dont trust their doctors so i see my own...

#11 robert51

 
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Posted 26 October 2008 - 03:03 AM

Blake ... are you taking meds... ??? Are you still seeing a doctor at least once every 2 months.. are you PtSD? If so you need to see a doctor even if its on your own.. cost is only 30 dollars max for a one hour appt.. i turn in every year at my yearly physical a report outlining my visits to my private doctor.. I dont trust their doctors... VA manila is where you will go....

#12 rentalguy1

 
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Posted 26 October 2008 - 10:29 AM

There are a lot of vets that had their 21-4140 mailed on August 1st and didn't receive until October. Go to VAwatchdog.org and you can read all about it. You need to fill out the form and send it back, ricky-tick, via certified mail, return receipt requested. Then send a IRIS to the RO explaining what happened. You may not even be required to go to this exam after all. You never know.

#13 purple

 
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Posted 26 October 2008 - 11:30 AM

We know by now we can't depend on the VA for much. Jim Strickland said the best (and pretty much only) thing to do about these forms is set a reminder once a year on your computer, calendar or wherever and download the form yourself and send it in ahead of time. Don't wait for the VA to send it to you. Remember, as always, keep a copy, do the certified, return receipt mail thing.