Guest Speakers

Tonight our guest speakers will be Dr. Bash and Bill Kreger. Whenever they get here— they’re running a little late but they’ll be along directly— we’ll get them going real good for y’all. If anyone has any questions or comments, feel free to call in. Our call-in number is 347-237-4819. Once again, that number is 347-237-4819. Press number 1 and that’ll put you in the queue with us, and when we see you come in the queue, we’ll try to get you on the line.

Discussion on Reductions and Severance

Host: I think that’s Dr. Bash. Yep, Dr. B, how are you doing today, Dr. Bash?

Dr. Bash: I’m good, thank you.

Host: And it looks like Bill came in right behind you.

Bill: Yeah, here I come, glad to be here.

Host: We’ve been waiting on y’all to start, so we got them all prepped up and raring to go. So, Dr. Bash, what would you like to talk about today?

Dr. Bash: Well, we could talk a little about CUE (Clear and Unmistakable Error) and severance, you know, when they cut benefits.

Host: Oh yeah, that catches a lot of veterans off guard.

Dr. Bash: Yes, there’s a lot of effort to try and save budget money, so we’re seeing a lot of reductions.

Bill: It’s particularly problematic when we’re dealing with the evaluation of the service-connected disability and the decision is made to reduce that evaluation. There’s a long list of tests and requirements that must be met before you can reduce a veteran’s evaluation of disability. What I’ve found over the years is that a significant portion of those reductions are made without consideration of the requisite regulatory requirements.

Host: Well, that may be so, but doesn’t the VA have to give the veteran so much notice before they actually reduce their comp or pension?

Bill: Yes, you’re exactly right. The governing regulation for that is 38 CFR 3.105(e). Congress created that rule to allow a veteran time to adjust his lifestyle and budget before suffering the loss of that income. That’s why the regulation provides 60 days.

Host: So they must give them 60 days notice before reducing their benefits?

Bill: Yes, recently we reviewed a case where the reduction was effectuated 59 days after the decision to reduce. That doesn’t meet the 60-day requirement, so VA must immediately restore his evaluation. They can propose to reduce again in the future if they follow the correct procedure.

Dr. Bash: This case is particularly egregious because it involved a brain tumor patient whose brain doesn’t work normally. For them to reduce his benefits incorrectly is really bad because he can’t protect himself against the system that’s taking advantage of him.

Bill: Yes, his impairment renders him less able to defend his compensation. It’s just unforgivable.

Host: So, the rules are clear: 60 days notice. Did they give him proper notice?

Bill: In the second case we’re working on, they didn’t give the right notice or paperwork. The VA initially granted service connection for a tumor but mistakenly adjudicated it as benign when it was malignant. They then assigned the minimum 30% evaluation for residuals of brain tumor, which wasn’t right.

Dr. Bash: Both cases show problems with timing. They’re trying to rush to reduce these veterans without adequate notification.

Bill: Historically, the speed of adjudications and automation have led to errors. The regulations intend to ensure stability in disability evaluations, but these intentions often fall short in practice.

Host: What happens if a veteran’s disability evaluation has been in place for less than five years?

Bill: For evaluations in place less than five years, the regulation 3.344 does not apply as stringently. However, the decision should still be based on a thorough examination of the entire record.

Dr. Bash: And the quality of the exams matters too. Sometimes, nurse practitioners and PAs conduct exams instead of physicians, and the quality of the exam can impact the decision.

Bill: Yes, if I have an opinion from a neurosurgeon versus a nurse practitioner, I have to weigh the reasoning behind each opinion. The neurosurgeon’s expertise and detailed understanding often carry more weight.