SERVING
Those That
SERVED
Questions & Answers
INSTRUCTIONS: Please read each question carefully. If you are able to answer question appropriately use the form below the question to respond. Your name will not appear on the public answer page. Only your initials and date of your response will be visible.
Q565: I will try to make a situation I had easy understand, because it really is complicated. I am 100% service-connected and one of my disabilities is for my back and I am rated at 40%. My back problems go from bad to worst every day. Some days I can manage to get around and even pick up things. Other days I am confined to my bed. On a good day a few months back I decided to pick weeds from my front lawn. Well, a VA investigator recorded me picking up weeds. I have no idea how I was recorded or the exact date, but the VA has footage of me picking up weeds. Now long story short, VA sent me a letter saying they plan to reduce my rating because they have reason to believe my back is better. Long story short, I was allowed to view video footage of me picking up weeds which is how the VA came up with the decision to reduce my benefits. What can I do to stop the VA from reducing my disability rating? My back is bad 95% of the time and the other 5% it is only 50% usable. Why should I be penalized for one day of movement outdoors?
If you have a question about benefits, compensation, pension or VA related issues please submit here.
Use Form Below To Respond
A1: What was the reason for the investigation or probable cause? Were you selected for some reason? I would get into the root causes for them to perform observations of your daily activities. Often these investigations are initiated and violate agency rules or even laws. To recap no agency should be randomly performing daily observations of Disabled Veterans without probable cause. (RD) 11/13/20
A2: I have never heard of a VA investigator. I really have never seen any such thing in the budget, BUT, here is a very logical answer: Does the VA give you meds for your back? Do they work as advertised? In other words, while you are on these meds, you basically feel no pain in your back, and quite often you will pick up more than you should, or move in a way that you should not. There is really nothing unusual about this behavior. Of course, the next day you will be in pure pain as you wait for your meds to kick in again, but that is how life works. Look, you can re-injure your back by simply picking up a pencil if you are facing the wrong direction as you do it. They can not reduce your benefit until they give you another comp & pen. At that time, they will be asking you questions. And at that time, let them know that there will be days that you are not in any pain, but the next day you will be all-but paralyzed by the pain. --the point is this: Just because your med is working as advertised does not mean that you are now cured. (JM) 11/13/20
A3: Go to a private doctor who specializes in back problems. If he deems your back is bad enough to say your are disabled the VA will stop the process. The key issue is in the wording. (RI) 11/13/20
A4: You need to contact an Accredited Veterans Service Officer with the Am Legion, Am Vets, VFW, DAV, or another Veterans Service Organization. Also, have you addressed this issue with your current VSO? If not I would see him/her immediately. Someone has probably filed a complaint with the VA regarding your situation. The VA does not randomly decide to just go look for individuals. There must be cause. Also, you did not state if your 100% is Permanent and Total with no further evaluations. Without seeing the decision packet I can only surmise. In the time it took you to ask this question you could have been at an Accredited VSO's office seeking assistance. But your situation can be turned to your favor. (GH) 11/13/20
A5: You probably could fight it but it would take time. You somehow have to prove that for one day out of many many bad ones, you felt like a human and did what you did just to enjoy life. I hope you realize that if they reduce the 40% back disability you would not be losing a penny. At 40% back comp and 100% whatever else is the other comp, you are being paid. The most you could receive is 100% money. Any other disability or multiple disabilities with no relation to the 100% would have to be 60%, then you would be entitled to SMC-S which would be an additional $300.00 something a month over the 100%. (JD) 11/13/20
A6: Long story short, explain to the VA that when you do have a good day and are able to do some things like pulling weeds or some other minor work you pay for it in the long run. Tell them what medications you take after working and how long you are laid up in bed (days even weeks) after such strenuous exercise. Their actions are based on video only not on communication, Not all is what one experiences in pain and suffering. (RA) 11/13/20
A7: Tell them you have your good days (5-10% of the time) and your bad days (90-95% of the time). Also have your primary care doctor to write a letter stating the above. Also tell them you was out doing yard work on one of your good days, which are few and far between, so when you have a good day you try to get as much done as possible. Do this all on a VA form 21-4138. (AH) 11/13/20
A8: The goal of the benefits side of the VA is to reduce cost. This is more so since the current president who just lost an election has been trying to reduce costs. Whenever you lose incoming revenue you have to make up the cost somewhere. Giving tax breaks to the rich is the cause. Now if what you say is true then you must fight it. Everyone has good and bad days and then inconclusive days. It is not like you got a job pulling up weeds for extra income. I trust what you say is true. Some people do lie or try to cheat the system but it is a system that encourages so many to exaggerate because the VA will downgrade or ignore a just claim. If you ever said you cannot not bend down at all then that hurts you but you have to appeal to common sense because you could be referencing that moment when you could not bend down. The observer could film you but that person would not know how much pain you were experiencing at that moment or later because you dared to bend down. Hold your ground and make them prove that you are not well. Once you have most health issues they never go away. You can heal from a cut but a damaged back never gets better and if your back was damaged while serving in the armed forces you deserve compensation. If you have to you can get a lawyer but that should be considered for later. (JD) 11/14/20
A9: Hire a disability lawyer ASAP. (TP) 11/14/20
A10: My advice would be have family, friends and neighbors do a Statement In Support Of Claim each. As well as check your medical records about what is in them about your back and make copies of them. Write to your congressman the problem and contact a VSO one that you know will work to help you. I am in the same boat most likely for because of the pandemic I have had to almost kill myself to get the place we bought livable. I even paid someone to build a 12x30 foot shed and he got materials not all of them and did the floor and one wall then he got busted for drug dealing. I do not have his address and he will not return calls but once I find out what it is then will sue for about $2,000 back out of the $5,000 paid him. The materials were close to $2,500 I believe for I never saw the receipts. I therefore had to do the work myself and used my truck to drag some of the materials to the roof and to pull walls up into place with supports to hold them up in 10 foot sections or pull up plywood onto the frames. I am almost crippled because of it. My neck, hands, fingers and sine down to my tailbone which is very tender. I believe I have destroyed my vertebrae cushions and have pinched nerves because of it. I expect they will say I am fine and they will lie about it and only show the pictures of me working not bending over in excruciating pain at times. I finally was able to get 3 friens to come help get it painted so it is finished. Now that I can relax not easy to do when waking up in pain about 3 to 4 times each night. Plus I had to figure ways to get all the boxes and furniture in the house from the garage so had dollies and furniture mover and so you need to get enough proof to show that the VA only is showing when you are in good shape not the bad times. You may have to get an attorney to fight them for the VA is underhanded and sneaky. I have a shotgun and have not had the opportunity to try it out so if they fly a drone low enough will pretend I am duck hunting. Live out in the sticks some for tired on being packed in like sardines. Best of Luck to you and hope you can get them to understand. (JM) 11/17/20
A11: Get a good attorney First, review VA decision when they granted disability for back condition. 1)what date of the decision if it been more than 20yrs refute that its protected benefit. VA guide line protected benefit for disability 20yrs or more since award date. 2)get a recent MRI were finding of result shows indication of arthritis, bulging disc or herniated disc if further indicate there no improvement. 3)doctor or orthopedic statement review of MRI result is consistent of diagnosis as stated above with some, mild and/or severe deterioration. Opinion of treatment of either spinal injection and/or physical therapy or both as option reduce pain at least in part lessen pain and discomfort as mush. 4)copy all medical doc, visit, cost, medication a diary would be heipful 5)expect this will be on going appeal process 6)VA ruled that pain is considered debility in part to medical condition and argue on that point, I tell you from own exp I have just one page in my military record for knee injury, That one page was not place in my medical file it was a medical referral for orthopedic which is odd. I argue that I never seen by othro in Army. Nonetheless, official DOD doc my knee inj considered service connected. War is hell on appeal process pass the ammo!! (FL) 11/17/20
A12: The "easiest" claims to win are all of them if you follow the rule of three. First is an In-service occurrence (something in your service treatment records). Secondly, a current diagnosis and thirdly, a nexus, or link between your current diagnosis and your in-service occurrence. You'll get service connected everytime. (DS) 12/13/21