VA benefit reduction

jfranchi

Well-Known Member
Registered Member
A little background, active duty Army MAR 98 to JUL 07. 3 deployments to the sand box. Joined the AZ National Guard in NOV 10. Back surgery in SEP 17. P3 profile in MAR 19, followed by an unfit for duty letter from state. I had put in a VA claim in NOV 18 and didn't receive a rating until FEB 20. The VA determined my back was duty related based on my active duty records, but I had no Guard LOD for my back. The guard said it was not duty related. When I did my election in JUL 19 I elected non duty related because I didn't have any VA rating or LOD from the guard. I received my DA199 today and it says they are discharging me because of my back and determined it was non duty related. My question is can the VA go back and reduce my rating because the PEB determined it was non duty related? I received %100 total and permanent rating.
 

RonG

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As you likely know, the DoD rates only unfitting conditions; the VA rates all service-connected disabilities and apparently, they found the evidence in your active duty records adequate.

I think there is little likelihood of the NG decision affecting the VA rating; however, there are people on this board with much more experience than me in this area.

Ron
 

Camp P Marine

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It is rare when the VA severs Service Connection, unless it was granted in error.

The VA can make revisions of decisions under the following statue:

You still have "due process" rights to request a hearing if the VA proposes this decision.

38 CFR § 3.105 - Revision of decisions



(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.
 

jfranchi

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Registered Member
Well that's what I have heard from my VSO and here. But when I called soldiers counsel today the paralegal freaked me out when he said VA can take my Benefits since the PEB said my injury wasn't a LOD according to the Guard. The DA199 says non-duty related. I talk to the attorney on Tuesday.
 

oddpedestrian

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This is just one of those cases where it was beneficial that both agencies do not have binding decisions over each other. If the VA service connected it "from your active duty records" or from deployment records then I find it very unlikely that you will get it severed. Also I find it common for many NG members to be rated from the VA and also receive a non-duty related discharge the NG seems to be more biased in finding disabilities non duty related. Nonetheless to err on the side of caution since you are P&T I would refrain from filing any additional claims to not give anyone a reason to re-look at your claims file.
 

jfranchi

Well-Known Member
Registered Member
I talked to my attorney this morning from the OSC, he pretty much said the same thing. We could appeal but there really is no point. He said the paralegal was confused about my situation and that we should not open up another can of worms. I signed my da199 and sent it off
 
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