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Question #90 My husband was rated 100% disabled upon re-examination when he was 56 years old.
Subsequently, he was sent to another VA examination where the doctor opined he was employable and the VA as a result proposed/moved
to reduce him by 50%. My husband objected and requested (as was offered by the RO) a hearing. Subsequently, the VA without
providing the required hearing reduced my husband by 50% as previously proposed. Approximately 15 months later, the VA reinstated
my husband to 100% (retroactively) to when he was reduced and immediately directed him to report to the RO for the hearing
that was skipped two years prior when the proposal to reduce action was originally initiated. At the hearing in April 2016,
my husband provided a private doctors examination on the VA form, for which, the doctor supported a 100% disability. The RO,
since directing the hearing in February also raised the issue of a prior claim and subsequently scheduled a physical examination
and rated the arthritis found by the VA doctor "0%" in less than 2 months. While not resolving the proposed reduction
hearing or addressing the new medical evidence presented at the hearing that is now outstanding more than 2 months from the
hearing and over a year from the initial proposed reduction. Someone told my husband if he was rated 100% after his 55th birthday
VA rules or law prohibits re-examination, but it appears the RO ordered a new examination 4 1/2 years after my husband was
first rated 100% and then used that examination to justify reducing him without a hearing. If the reduction action was voided
as a "clear and unmistakable error" then how can the old proposal to reduce be honored and "legal or ethical?"
Considering that my husband has been retroactively reinstated to 100% and his 100% rating being constructively in place for
6 years and 3 months (erasing the reduction time) then how can the prior proposed reduction action be considered, and if so,
how does the VA ignore the new medical evidence my husband submitted and the "due process" rules of reducing a 100%
rating after 6 years with their rating being interrupted/reduced by "CUE?" and now have a hearing on a proposal
where many of the factors have changed. Should the VA be advantaged by violating the rules? Especially, such a well settled
rule as a basic right for the Veteran to have a hearing and requested that hearing in writing sent certified mail. My husband
is always upset and depressed dealing with the VA. This just isn't fair to husband and my family. The VA won't even talk to
him. Seems like the VA kicks the can down the road and makes unilateral decisions that we just have to live without any say
so.
A1:
I would recommend you seek legal help. I know it will cost but I think it will be worth it. There are legal folks who work
on VA cases just like your husbands. (LC) 6/28/2016 A2:
I agree you need legal assistance. Please feel free to contact me at the email provided. I am accredited.
You can also get a listing of accredited help at http://www.va.gov/ogc/apps/accreditation/ (TH) 7/7/2016 A3: A1 advice is good
and just for if a BVA hearing you would get the same thing for the decision is made by a VA representative and we all know
how that will go. Filing a lawsuit may not be what you would like but suing for over 3 million in damages for what the
VA is doing illegally knowing them. Once you win your disability from the VA and all medical rights they will deny you
of all of that. I face a similiar situation for I am now over 65 so the VA by the time I reach 70 or before they will
take my 10% unemployability away because I will now be unemployable due to my age. Just figures that is the way the
VA works once your down they kick and stomp on you hoping you will call it quits then they win either way. I have evidence
that they knew in 2005 about my degenerative bone and joint disease and hid it from me and accepted both my knees but not
my neck and spine which is secondary to type II diabetes so this is another way the VA works looking at percentages to lower
the percentage. Best of Luck and do get legal counsel but make sure you have proof of who the evidence comes from and
if other ex military buddies get proof from them of when and where they served to show was with him to prove it. (JRM)
7/7/2016 A4: The first thing you do is file a NOD on the
reduction which will then kick in an appeal process. But, you have a short period of time for that. Next get your
ducks in a row. 6 and 1/2 years does not establish the rating as Permanent. It takes 10 years to become permanent
for treatment (still subject to reduction) and 20 years to set it so there can be no reduction in ratings. TH is correct
about getting advice. (CKP) 7/29/2016
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