@mikecross101,
Thanks for sharing your experiences.
I hope all works out for you in the end and you get all the compensation you have earned by virtue of your service.
Don't take the following as a criticism of your actions or your post. Just adding some input that may or may not be helpful to you or others.
First, though, in my experience, members and claimants generally apply for or pursue less than they are due. In your case, it seems that the initial outcome of your application is a worse outcome than you had. That happens, too, and in some cases, it is appropriate that folks get a reduced award of compensation. However, that determination must be based on evidence and legally supportable findings.
Denied & Reduced! (Warning about IU Claims)
Juat a quick comment....your situation is not limited to just IU claims. Technically, any application for increased benefits, i.e., on a schedular basis, could result in a review of the case and proposed reduction of rating. See below for more about the timing issues and the quantum of evidence needed to actually reduce an award.
I write this post to warn my fellow vets about Individual Unemployability claims. I called my DAV Rep today and just got my answer back. I've been denied IU and received a recommendation to have my current compensation (90% Combined Rating) reduced.
When I put my claim in for IU in Feb 2018, I had already obtained 10% (1999) for my right knee injury, 50% (2015) for pseudofolliculitis barbae (razor bumps), and 70% (2017) for Major Depression Disorder w/Anxiety Distress. Having met the threshold of IU (70% with one condition or 70% with Combined Conditions), I was told that I qualify for IU.
What they DON'T tell you is this: WHEN YOU PUT IN A CLAIM FOR IU, THEY RE-ACCESS YOUR "CLAIMED" CONDITION AND YOU TAKE THE RISK OF LOSING YOUR SERVICE CONNECTED DISABILITY COMPENSATION. THE C&P EXAM DOCTOR CAN REFUTE YOUR PREVIOUS DIAGNOSES!
It is a good reminder to folks that there are risks with any request for increased benefits (though, there are some instances where there really is no risk, or at the very worst a negligible risk).
So, with my IU Claim in, the VA requested ANOTHER C&P Exam, since I put down that it's the Depression that qualifies me for IU and prohibits me from working full-time. Long story short, the doctor not only accused me (and subsequently ALL Veterans) that I am "predisposed to exaggerating my condition", but in his opinion, "my previous claim, C&P exam, and awarding of 70% for Depression was "in error". He stated, "because the veteran has had no previous tests or diagnoses of Depression since leaving service in 1999, and has been seen by 5-7 different VA Medical Centers (since I moved several times over 20 years), it is his opinion that with no previous evidence, my award was in error."
There are probably a few problems with the examiner's opinion, based on what you stated.
However, what I would be more interested in knowing is the evidence before the VA about your ability to engage in "substantially gainful occupation." This may be the key issue in your case.
So today, I call my DAV Rep and the decision is to not only deny the IU claim, but reduce my Compensation by removing the 70% Major Depression Disorder and putting me back to 60% SC Disability rating. My DAV Rep put in VA Form 4107 to request a in-person hearing and stop them from reducing my compensation until the results of my hearing.
That is the right approach, procedurally, to address your issue.
Take a look at this part of the VA regs:
"§3.103 Procedural due process and appellate rights.
(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.
(b) The right to notice—(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.
(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:
(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in §3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.
(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.
(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.
(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement).
(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay).
(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).
(Authority: 38 U.S.C. 501(a))
(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.
(c) The right to a hearing. (1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans' Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.
(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician's observations will be read into the record.
(Authority: 38 U.S.C. 501)
(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.
(e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.
(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered."
(Authority:38 U.S.C. 501, 1115, 1506, 5104)
Also, look at this:
"§3.327 Reexaminations.
(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.
(Authority: 38 U.S.C. 501)
(b) Compensation cases—(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.
(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static;
(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;
(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;
(iv) In cases of veterans over 55 years of age, except under unusual circumstances;
(v) When the rating is a prescribed scheduled minimum rating; or
(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions."
Maybe submit a VA Form 21-4138 and withdraw your claim before it's finalized?
I thnk it is too late to try this based on what the OP stated.
