This one will curl your hair. Imagine being protected by a five year old rating. Well, protected inasmuch as you know it’s not getting better. Now, compound that to within a few short months of being protected forever at 20 years. Hooooold the phone, hoss. Time’s up. Gimme back that 10 percent rating and be quick about it.
As noted above, the 10 percent rating for hypertension was in effect for more than 5 years, and in fact, at the time of the reduction, was just a few months shy of being protected for being in effect for 20 years. See 38 C.F.R. § 3.951(b). Hence, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. However, the February 2008 rating decision that reduced the rating and the October 2008 SOC failed to reflect consideration of, or provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. No supplemental statement of the case (SSOC) was prepared on the hypertension issue, despite medical evidence providing relevant information being received since the issuance of the SOC. See 38 C.F.R. § 19.31. Among the evidence received was medical evidence noting a diagnosis of “portal hypertension” in 2007.
When you (the RO) decide you want to give some old boy a reduction on a rating, there are a few Ts to be dotted and Is to cross as my grandson is so fond of pointing out. What’s more, you have to really do your homework, get a few C&Ps, get some red-hot nexus letters to support your proposed reduction and tell him the jig’s up in six months. This gives him time to mount a defense, file a NOD and man the ramparts. Just think- all this over a 10%/$125 a month rating that Johnny Live Free or Die has had most of his adult life. He ‘s had it since separation in September, 1988 and VA is nosing around trying to dump him in August of 2007 and indeed did a month later. $125 dollars a month saved for karaoke machine rentals at the VA’s Kissimmee HR convention. $125.00 a month towards a $2,500.00 bonus to a VA employee for breathing. $125.00 a month doesn’t even cover the phone and CATV. It’s beer money and VA is approaching this like a fraudulent claim. Hell, where’s the OIG?
If you didn’t really pay a lot of attention to these dates and numbers, you would be excused for missing them in the blur of 34,140 decisions this year. Reductions in ratings happen all the time. Reductions in those claims five years and older are rarer. As for ratings in effect for just shy of twenty years, it appears a lucrative slaughter has been identified and a mad race through the file room has begun to identify these scofflaws. Millions, perchance billions are thought to be saved right at their fingertips. Awwwrrrgggghhhh! My Kingdom for an Electronic Paperless Database to find them all.
Meanwhile the old adage appears true. I was warned once by a VSO that it would be foolish to “open old wounds” by trying to CUE my back claim. VSOs to this day always warn not to be greedy and go for big ratings. The accepted practice is to settle for a 10% milkbone and let it fester for 10 years before coming back to the feed trough. You would be more “respected” and not considered as one gaming the system. Here, Johnbo has arrived again, asking not for an increase, but for HCV. This is far worse than the hypertension for 10 he answered correctly in 1988. He’s now in Jeopardy of losing that 10% because they spotted it in the C-file and immediately glommed on to it as being legitimate game for a haircut. Can you say Christmas Bonus in the Neighborhood? Sure you can.
Rarely does this ploy backfire as it did here. Most times the VARO carefully arranges the C&Ps several years in advance in order to more fairly “remunerate you in case it increased in severity”. If it did, you’d never see an increase without filing for it. Conversely, if it showed improvement a carefully orchestrated dance begins that seems to get top drawer treatment. If this were a new claim in the pile, it would be normal to see a rating in several years. Being as it’s a demand note to act or get off the pot, it floats to the highest priority ahead of even medical/financial hardship cases. $125.00 a month? Shoot, we’re talking a small fortune of $1500.00 a year here. If this were allowed to persist for another ten years, why, it would amount to $15 K! Quick! Get three signatures-pronto but don’t run or look too eager. And you guys wonder why I’m so cynical.
VLJ K. A. Banfield has good munchkins working for him. Those little leagle beagles ferreted out the finer points of §3.344(a) and exposed this attempt at the bum’s rush. It glows in the dark when the rating’s five minutes away from Bingo. This didn’t require Mensa intelligence but its gratifying to see they actually played it according to Hoyle. All too frequently the same arguments are used to defend egregious behavior rather than protect the Vet.
Score? Christians 1, Lions 0.