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Are you ready for this? Holy Lord! So I posted about how I’d submitted a request for Increase on my SC’d Asthma and got back a decision letter that stated SC For Asthma was denied which totally threw me for a loop. After a lot of research in to regulations for Severance of SC and so forth, I’d already figured out that they hadn’t followed process if severing SC was the intent.
According to 38 FCR 3.105(a) Section 2 in my case:
Error in binding decisions prior to final adjudication. Prior to the time that a claim is finally adjudicated, previous decisions which are binding will be accepted as correct by the agency of original jurisdiction, with respect to the evidentiary record and law existing at the time of the decision, unless the decision is clearly erroneous, after considering whether any favorable findings may be reversed as provided in § 3.104(c).
(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans’ Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.
(c) Favorable findings. Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans’ Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans’ Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
38 FCR 3.105(d)
Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.
Basically, they cannot just ‘sever connection” for something that is already SC’d. They can “propose it”, but it must be substantiated AND it can’t be based on two differing opinions of the same evidence the original SC was based on. In the event it is proposed, they have to follow specific procedures, regardless.
After reading through all of that, I carefully re-read my decision letter. It did not propose severing service connection. It was literally a denial as if it was the first application for SC of that condition. I logged on to va.gov and looked at my SC’d conditions. Asthma still shows 10% SC=Yes; but down at the bottom of the list…it has Asthma again with SC=No. That’s when I realized, they literally messed up the request for increase and treated it as a separate claim. Good Lord. So, I called the VA…they guy saw what I saw and says yep…they messed this up. You’ll need to file a form 20-0995 to get this corrected. I was like, “What? Why do I have to go through the appeals process to get them to literally redo the claim as it should have been done?” He said he didn’t have the power to fix anything. So, lucky for me…I know some people at my VARO. I called a friend who was like…”Oh good Lord”. I’ll get it fixed for you. The guy on the 1-800 line should have submitted a form to his Supervisor noting the issue, and they could have taken care of getting it fixed. So…there you have it. I’m still SC’d for Asthma…all of this has been a total disaster caused by someone who had no clue what they were doing; and I will still have a pending claim for increase. What a week!
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Are you ready for this? Holy Lord! So I posted about how Id submitted a request for Increase on my SCd Asthma and got back a decision letter that stated SC For Asthma was denied which totally threw me for a loop.