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Veterans VA Disability Claim Community | HadIt.com

         

This issue came up here recently and I prepared this article on the subject.

As I write this there have been 17,555 decisions at the BVA on proposed reductions, since 1992.
We have no idea how many other proposed reductions were rectified at the VARO level, and never got to the BVA -my husband’s was one of them-and the NOD was scathing and I used the regs they used AGAINST THEM, and they changed their tune and we dont know  how many proposed reductions were never appealed by the veteran. They accepted what the VA said and probably could have gotten the reduction restored.

The Worse thing any veteran can do is to ACCEPT a proposed reduction without trying to appeal it !!!!!!!!!!!!!!!!!!!!!!

2,268 BVA decisions  appear from 2020 to 2021 so far on this difficult ad even horrifying aspect of the VA claims process.


ORDER

The reduction of the rating for posttraumatic stress disorder (PTSD) from 50 percent to noncompensable, effective February 1, 2019, was proper.

FINDINGS OF FACT

1.  A September 2015 rating decision granted service connection and assigned a 50 percent rating for the Veteran’s PTSD from August 21, 2014, the date of receipt of his claim for service connection; the rating decision and a September 2015 notification of the rating decision informed the Veteran that since there was likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.

2.  The Veteran failed to report for an October 2019 VA PTSD examination; he did not provide good cause for missing this examination.

3.  An October 2019 rating decision proposed reducing the Veteran’s PTSD evaluation from 50 percent to noncompensable, and an October 2019 notice of the proposed reduction advised the Veteran he had 60 days to indicate his willingness to report for an examination or to submit new evidence showing the proposed action should not be taken.  

4.  A February 2020 rating decision reduced the Veteran’s PTSD evaluation from 50 percent to noncompensable, effective February 1, 2020, after meeting all due process requirements in executing such a reduction.

CONCLUSIONS OF LAW

The reduction of the disability rating from 50 percent to noncompensable for PTSD, effective February 1, 2020, was proper.  38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.655.
https://www.va.gov/vetapp21/files2/a21004495.txt
These claims warranted a successful restoration of the veteran’s percentage:.
https://www.va.gov/vetapp20/files6/20038667.txt
https://www.va.gov/vetapp20/files5/a20008653.txt
In this case:
 “In August 2019, a VA RO proposed to reduce the disability rating of the Veteran’s service-connected left lower peripheral neuropathy from 40 percent to 20 percent. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. “
“CONCLUSIONS OF LAW

1. The reduction in the rating of the Veteran’s right lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

2. The reduction in the rating of the Veteran’s left lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

3. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his left lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

4. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his right lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344.”
2. After completing the requested actions, and any additional development deemed warranted, readjudicate the issues of entitlement to disability ratings greater than 40 percent for the service-connected right and left lower diabetic peripheral neuropathy. Allow the Veteran and his representative time to respond before returning this issue to the Board, if any portion remains denied.”
https://www.va.gov/vetapp20/files4/a20005778.txt

“ORDER

The reduction to 70 percent being improper, restoration of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD), effective January 1, 2018, is granted.

“FINDING OF FACT

The notification of the proposed reduction was improper because it relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a). “
Thus, the Board finds that the AOJ relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a).  Moreover, the record does not illustrate clear error in the assignment of a 100 percent rating.

Accordingly, this procedural error renders the rating reduction void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Wilson v. West, 11 Vet. App. 383, 386-87 (1998).  Therefore, restoration of the 100 percent disability rating for PTSD as of January 1, 2018, is warranted.”
https://www.va.gov/vetapp20/files5/20034828.txt
All of these are painful to read but the reductions due to missing a C & P exam are proper.This case  has some good CAVC citations for anyone with PTSD who the VA pulls this BS on.
ORDER

As the reduction of the Veteran’s disability rating for service-connected posttraumatic stress disorder (PTSD), with alcohol use disorder, from 100 percent to 70 percent, effective November 1, 2017, was not proper, restoration of the 100 percent rating is granted.

Special monthly compensation (SMC), pursuant to 38 U.S.C. § 1114(s), is granted effective November 1, 2017, subject to controlling regulations governing the payment of monetary awards. 

“FINDINGS OF FACT

1. The notification of the proposed reduction was improper because it relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a).

2. As of November 1, 2017, the Veteran has one service-connected disability rated as 100 percent disabling with other service-connected disabilities independently resulting in a at least a combined 60 percent rating.”

https://www.va.gov/vetapp20/files7/20044483.txt

( another case whereby the VA did not follow the regulations- can you imagine how stressful those reductions were to the veteran with PTSD?


“ORDER

The reduction in the disability rating for the Veteran’s service-connected posttraumatic stress disorder with major depressive disorder (hereinafter “PTSD”) from 100 percent to 70 percent, effective December 1, 2019, is void; restoration of the 100 percent disability rating is granted.

“Under the General Rating Formula for Mental Disorders, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as persistent danger of hurting self or others.  Based on the Veteran’s lay reports of symptoms during the August 2019 VA PTSD examination, and after resolution of all reasonable doubt in his favor, the Board finds that there was no actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  This is because the evidence available at the time the RO proposed reducing the disability rating demonstrates a level of impairment consistent with the previously assigned 100 percent disability rating.

For these reasons, the Board finds that the RO did not properly apply the provisions of 38 C.F.R. § 3.344 in the September 2019 rating decision.  As noted previously, when a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio.  Greyzck, 12 Vet. App. at 292.  Thus, the appropriate remedy in this case is a restoration of the 100 percent disability rating for PTSD effective on the date of the reduction, December 1, 2019.  See Hayes v. Brown, 9 Vet. App. 67, 73 (improper reduction reinstated effective date of reduction).  The appeal is therefore granted.”
https://www.va.gov/vetapp21/files5/a21009918.txt

This is 38 CFR 3.344
https://www.law.cornell.edu/cfr/text/38/3.344

The worse thing any veteran can do is Accept a proposed reduction.

There are excellent articles from Vet attorneys on how to combat a proposed reduction:

https://www.veteranslawblog.org/va-benefits-reduction/#:~:text=When the VA decides to,a temporary retreat of symptoms.
( Chris Attig)

https://www.hillandponton.com/can-i-stop-va-rating-reductions-on-my-disability/  ( Matt Hill)
https://cck-law.com/blog/what-happens-when-va-proposes-to-reduce-my-disability-rating/   (CCK)
and M21-1MR ,Part III, subpart iv, Chapter 8, Section D

Manyof the decisions restoring the veterans proper comp $ use the term Void Ab Initio:

 

“VOID AB INITIO

THELAW.COM LAW DICTIONARY & BLACK’S LAW DICTIONARY 2ND ED.

Latin, void from the beginning. Never legitimate or valid”

In essence meaning the VARO f—ed up royally. Thereis no other way to describe their ineptitude sometimes.

The NOD I prepared for my husband, when they tried to lower his PTSD from 30 to 10% was a beauty.

After he died I was able to get his PTSD % up to 100% P & T, with an EED three years after their ridiculous proposed reduction crap.

He was so angry and upset he could not handle the NOD so I wrote it for him. Then he calmed down and said maybe the VA is right…..???

I laughed and said they are usually never right when they pull this crap. After he read and signed the NOD and read the regulations he was mad as Hell again-because their reason for reduction was ABSURD! They changed their tune and dropped the proposal due to the NOD.

But I will repeat this again fast because ( we are under a tornado warning—-)

A veteran who gets a proposed reduction must act fast to combat it. VA could have easily broken the regulations as they did in some of the above cases.

 

Or they can choose to do nothing. Some of the reductions above were proper, some were far from proper and legal. And the restored ones are heartbreaking to see how a legitimate deserving veteran was treated so negligently by the VA claims process.