Question:
Jim,
My disability is for Bronchial Asthma, which I have been rated at 100% for just shy of ten years now. Last fall I received a notice of proposed action to reduce me from 100% to 60% because my condition had "greatly improved". I immediately responded telling them that my condition had not greatly improved, but merely stabilized somewhat. The stability comes with the use of high dose corticosteroids daily.
They decided to go ahead with the reduction stating that I had failed to show up in a designated VA Medical Center for a C&P exam and a pulmonary function test. I immediately informed the VARO that I had not been notified of any such exams and questioned why they had scheduled them at a VA facility that I did not receive my medical care at. I also quoted the regulation for bronchial asthma which states that the daily use of high dose corticosteroids mandated a 100% rating, they chose to also ignore that fact. They reduced me effective March 1, 2008 despite the fact that I clearly met the guideline for the 100%. I scheduled a PFT to be done in St Louis on April 25th, the first available appointment that I was able to get to St Louis for. The results of that test show my FEV1/FVC to be 19% to predicted, anything below 40% is an automatic 100% rating for bronchial asthma.
I have sent that information into the VARO to no avail. I have also sent in the 686c form and supporting documents to add my husband as a dependent 12 times since we married last July. They have basically refused to add him, even lying and saying that they never received the documents. This seems to be par for the course within the VARO. I sent both the dependent documents and my formal notice of disagreement to them via certified mail, forcing them to sign for the documents, thus giving me irrefutable proof that they did indeed have them in their possession.
My NOD (appeal) was signed for or 2/11/08, however it was not entered into my file until I faxed it to the VFW and they hand walked it to the VARO on 4/4/08. The dependent forms were also signed for on 2/11/08, but they have yet to be entered. The dependent form went to them in every feasible manner possible, regular mail, certified mail, fax, through the VFW and in person. Why they won't add him is a complete mystery to me.
If the VARO refuses to restore my 100% rating in the next few weeks I will be unable to meet my financial obligations and will end up in foreclosure. I am at my wits end with dealing with the VARO St Louis. Any help or guidance you can give me would be greatly appreciated.
Answer:
I have worked with many cases similar to this. It's SOP that the VBA will try to reduce that rating. The law requires them to do it and it is one way of controlling the budget.
It's unfortunate that you didn't respond appropriately to the VA when you got the letter. I can't be sure why you didn't.
The "Proposal To Reduce" the rating comes to you in a letter. In that letter are spelled out all of your appeal options. The language of what you must do is crystal clear.
The first appeal option is to timely (30 days from the date of the letter you received) write them a letter telling them to take no action until after your appeals are exhausted. If you do that, they must not reduce your rating until they allow you hearings, evidence is produced and so on.
Beyond that you have the option to timely (60 days from the date of the letter you received) appeal the action. They will reduce the rating but will grant you a quick informal hearing and then usually reverse the decision.
The reason you got the letter is that you are approaching the 10 year point of being rated at 100%. That triggers their calendar to attempt to reduce you prior to the 10 year mark. At 10 years your dependents may become eligible for benefits upon your death from any cause and that is expensive to VA. If you have more than 10 years at that rating, they can't go back in time. So, your calendar brought it to their attention and the ball was rolling.
Had you responded to the VARO per the instructions you were given, nothing much would have happened.
In your note you mention that VFW represents you. I am a proponent of the Do It Yourself (DIY) method and I never recommend the VFW as a representative. In theory, your VFW VSO holds your POA. They would have been notified of this action at the same time you were and should have instructed you on the correct path to follow.
You say that on receipt of the letter, "I immediately responded telling them that my condition had not greatly improved, but merely stabilized somewhat."
That is not a proclamation of, "I disagree with your proposed actions and I do not want you to lower my rating and I want a hearing."
The rules are rigid and won't bend. It's their game, their ball and they make the rules. You ignore their rules at your own peril. They didn't ask you about your condition, they asked you how you wanted to handle the proposal.
You made a classic error by faxing to VFW, hand carrying, mailing and using "every feasible manner possible". There is only a single effective way to communicate and that is certified mail, return receipt requested. Once you've done that you don't do anything else but wait your turn. To add more paper to the jumbled heap only irritates them and the inclination then becomes "I'll deal with this after I work on these nice, neat files over here." They are human and they do ignore paper they don't like.
If you really did send in “the 686c form and supporting documents to add my husband as a dependent 12 times since we married last July” I can imagine that the reaction to more mail from you is to just bury it deeper in the stack. It's not been a year yet and you've mailed the same documents 12 times?
To add dependents may take 2 years from the date the original letter being mailed in to them. It isn't a high priority to them but they will get to it, they always do.
You must wait your turn. There are estimated to be 400,000 to 600,00 files waiting in that line and they get to them one by one. No priority is assigned to any one file.
That the rules about your disability are on your side makes no difference if you didn't timely respond in 30 days or 60 days with precise instructions. You are talking about your condition, they are addressing the process.
If they say you missed a C & P and you say you weren't aware of it, they're right, you're wrong. It's their game, their rules...etc.
I'm not sure of the date you received the proposal letter ("last fall") but you had 2 periods for actions that would have derailed the VA action. That 30 and then that 60 day period. Those are gone. You can now quote regulations and test results all you want but the law (their rules) is going to support them.
Now all that's left to do is appeal... NOD.
You have a year to do that.
You say that things aren't "entered" in your file. I assume that you are calling the VA to find that out. I recommend that one never call the toll free number because the answer is always incorrect. The toll free number is now being answered in national call centers. The call center employees are the bottom of the barrel of employees. They're new and untrained and have no supervision.
The computer screen they see is an antique. The system that is used is old software, inadequate for all but very simple applications. The screens are complex and the data is often not updated for 60 days at a time. In a recent conversation with a "VA Insider", a trusted executive who gives me inside information, he tells me bluntly that the call center employees know that they have to lie to you in order to get you off the phone and they do so freely.
Never, ever call the VA except to ask for a weather report. That too will be wrong. The person you are speaking with has no idea of what is or isn't in your file. They just want you off their phone.
Your appeal will likely take a year, maybe two. As you missed the 'timely' deadlines it is now just a routine appeal. Had you responded in 60 days you would have had an option for an expedited Decision Review Officer (DRO) process de novo review. That's the point that most of thse reduction actions get favorably resolved. However, once past that 60 days, they won't accept that.
You can win the appeal, I doubt that you will win it quickly. Again, I do a lot of these from asthma to cancer to combat injuries and it's a routine process with distinct requirements to make it go away. I've handled a dozen or so in the last year and won them all. But I haven't had one where all time lines were missed. That really hurts.
I'll be happy to assist you as you go forward. If so, I'd like to see a PDF scan of the original letter proposing to reduce so that I may look for any errors on their part. Please redact any personal data like your SSN first.
If you are denied again, and you very well may be, you will need a lawyer. I tell you that so you understand that everything you do from now forward is to buff up your data for an appeal to BVA or CAVC. This could get extremely complex so you want to get in a mind set that you will land in a more formal setting some day.
Jim Strickland's Mailbag: Volume #42 for 2008
NOTE: Letters in my mailbag are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.
06.06.08
Question:
Jim,
I read with interest the posting about SMC. I am typing this straight out of my husband’s rating letter “ Housebound benefits are payable if the veteran has a single disability ratable at 100 percent and additional disabilities independently ratable at 60 percent or more; or if the veteran is substantially confined to his or her dwelling and immediate premises due to disability. My husband is rated 100% for his heart and 60% for chronic renal insufficiency due to hypertension and does receive special monthly compensation. My husband can still work due to an extremely understanding employer but he still meets the statutory criteria for entitlement to housebound benefits.
I was hoping this might help the other gentleman that was inquiring. Thank you,
Answer:
Thanks for sharing. Your experience is unusual and you're fortunate in many ways. Please give your veteran my best wishes.
I try to communicate to my readers the practical side of the VA experience more so than the perfectly correct technical side. All too often veterans expect that what they read as the letter of the law will be what happens to them. That's actually pretty rare.
I couldn't begin to cite the number of cases where I'm positive that a veteran is deserving of and qualified for homebound, A & A or SMC benefits and they're denied. My experience is that if a limb is not functioning, as in after a stroke, the benefit is usually awarded. Everything else is murky and VA argues it.
Yours is the first time I've heard of a veteran who can work receiving a homebound benefit. I'd have to say that if he isn't working from home via computer or some such, VA must not know he's working and if they did know, that benefit may disappear even if he did meet the statutory requirement.
I think a good example is a note I received from a veteran yesterday. She is 100% with her asthma, a residual of oil fires and other chemical exposures in the Gulf War. When a veteran rated at 100% reaches the 10 year anniversary of the uninterrupted rating, he or she will qualify for some enhanced death benefits for dependents.
So, quite often, right before the 10 year point is reached an attempt is made to lower the rating. There is a calendar alert system notifying VA of these timely things.
She was notified of a proposal to lower her from 100% to 60% due to her "improvement" which had not been clearly demonstrated. Her testimony is that she is "stable" but not "improved".
Unfortunately, she did not timely respond with the appropriate message. When a notice of a proposal to reduce a benefit is received, the veteran has a 30 day window and simultaneously a 60 day window to request certain actions to interrupt the process. Rather than replying with a written NOD delivered vis certified mail, she replied via telephone with an angry message that they were incorrect.
Her reaction today is, "They can't do this to me, I replied to them in the 30 day window." The VA stance is that she did not reply with a NOD as the letter requires.
You probably know I recommend that veterans only use the toll free number to check for an updated weather report. You'll get the wrong information about the weather but the worst that will happen is you may encounter rain. Depending on the toll free system for your benefits will lead to more tragic occurrences.
Then VA says they notified her by mail of a C & P exam, she says she was never notified so she missed it. They lowered her rating. A plea of, "They can't do this to me." is usually wrong.
Now she's in acute financial distress and she's contacted me. Her medical records clearly reflect that according to the criteria to be rated at 100% for asthma, she is well qualified. The criteria are based on the types of medicines required to treat the symptoms and the numbers that result from a Pulmonary Function Test. Either category would satisfy the statute in her case.
Even so, she did not file a timely appeal. Missing an ordered exam comes down to a case of "they said, she said" and they always win those.
She meets and exceeds the statutory criteria for entitlement to 100% disability compensation due to a severe asthma condition but is now rated at 60%.
The VBA was successful in reducing her benefit before she reached the 10 year anniversary.
She now must appeal. Rather than being the simple appeal that would have occurred had she responded within the "timely" 30 or 60 day appeal period, her appeal is now garden variety and may linger a year or two. When her 100% benefit is reinstated, the VBA is likely to reinstate it as of the date of filing the appeal. Thus, the 10 year clock restarts. For the next 10 years, if she dies from a cause other than her service connected condition, her dependents aren't entitled to benefits.
Mission accomplished!
There are 2 lessons here.
First, I don't always advise veterans strictly by the statutory requirements as that often isn't real world. Your situation is an exception to the ordinary. I consider the statutory requirements to be guidelines to success, influenced by many other variables.
Second, when a veteran receives a notice of any pending action from VA, the veteran should act as if the house was on fire and react accordingly.
You can always depend on VA to perfectly protect their own interests, not yours.
Question:
Jim,
A local veteran I am assisting in developing a claim for benefits brought up an interesting idea. He has been diagnosed with PTSD but has no awards or POW status that would allow the VA to forgo proof of a stressor. He served in war time in the theater of operations and had a singular event which was never documented or witnessed by others during said service.
He suggests that he wants to take a polygraph examination and add the results as supporting evidence of the stressor. I personally find the idea intriguing but I have no experience with nor have I ever heard of anyone doing anything like this with a VA disability claim.
I talked to a local polygraph expert which has extremely impressive credentials related to his expertise. He said that he could develop some questions that would work well with the situation and provide a statement outlining the results of the examination, his experience and credentials.
I can see that in the case of a veterans statement and diagnoses alone that favorable results of such an exam could serve to reduce doubt but I am not sure if it would be enough to push it over the top.
Are either of you aware of cases involving polygraph results used as supporting evidence of a stressor? Your thought in this matter would be greatly appreciated.
Answer:
It is an intriguing idea.
However, in my opinion, one that won't ever get serious consideration. I have a feeling that a veteran who found his own polygraph examiner, paid for the exam and submitted it as evidence would find his evidence isn't going to be a part of the decision.
It's unfortunate that the system for determining disability hasn't seen much change since the 1940s. As you know, change isn't looked upon favorably by the VA. In legal circles, polygraph exam is used as more of a screening tool than as evidence to prove or disprove something.
I can't recall anyone ever convicted or released on the evidence of a polygraph without other more powerful and traditional evidence.
The obverse would be a pitfall if VA were to allow it. They could very well say, "OK...you have pretty good evidence that you have a stressor. But, we don't believe you. So, we're giving you a polygraph and if you don't pass it, the game is over."
Also, obviously, before he took such a test, the VA would have to agree to it. Why? Well, they would want to know if he didn't pass it...just to keep the playing field level.
Would your veteran agree that if he didn't pass it that he would submit it? If not, he's gaming the system. Each party gets to see all or nothing.
In the criminal justice system (if what I know from watching Law & Order is true) many who are charged decline a polygraph because there are significant error rates (false positives) that may make an innocent man appear guilty.
Having said all that...as a rule, the VA is mandated to give extra consideration to a veteran who has served in a combat theater even if a particular event isn't witnessed or documented. If there is good evidence that he was in a combat zone and his story is reasonable, the VA should defer to his accounting of it.
I've recently appealed hearing loss cases for WWII veterans. On application the VA quickly denies and tells the veteran, "There is no evidence that your hearing was damaged on active duty." On appeal we write back, "I landed on Iwo Jima. There were 65 Navy ships that fired for 4 days straight and dumped 500,000 pounds of ordinance each day. I was on one of those ships."
The appeal is always approved.
There you go. Interesting idea though.
