Question:

Some basic facts:
1. I never had any problems with my feet before Joining the ARMY. 2. When I exited the ARMY in 1990 I was given a service connected disability of less than 10%. 3. I was told that I had unusually high arches (the opposite of flat feet which will be relevant later). 4. My feet slowly worsened over the years until in 2015 I could not get thru a full day of work so my employer let me go. 5. I applied to have my <10% service connected disability increased. It was granted to 30%. 6. In November 2017 for an unknown reason while driving a truck my right foot swelled up to about 4 times it’s original size there was no injury at all but the doctors speculated that maybe I twisted my ankle and it got real bad real fast. 7. June 2017 I applied to have my disability increased again. 8. A few months later I got 2 letters one denying my increase because the VA believes it’s not service connected and a second letter saying that my FLATFOOT (remember I have high arches the polar opposite of flatfoot) condition had improved so the VA was proposing to downgrade my 30% to 10. The proposed downgrade letter said I could submit additional medical evidence and/or ask for an in person hearing for them to consider before adopting any actions. The other letter denying my request for increase said I can appeal within 1 yr. So within days of getting the letter I asked for a hearing but did not submit any additional medical evidence since I know that I never had FLATFEET. So I figured once I pointed out that I never had FLATFEET then obviously their reason for downgraded would be as bogus and the condition I never had. 9. It’s been a few months and I never got any notification of any hearing but today I got a letter saying that my disability HAS been downgraded to 10%. I never got my hearing so they never reconsidered that I NEVER had FLATFOOT therefore it did not get better. It’s like saying that they are going to downgrade my disability because my amputated arm has grown back. 10. About 2 weeks ago I was in bed for several hours and awoken in the early morning with severe foot pain in my left foot. I went to the VA hospital and found out that my left foot had some bones that were dislocated 11. I suspect that because I was going up and down 2 flights of stairs and putting the majority of my 285 pounds on my left foot to allow my broken and dislocated right foot to heal put too much stress on my what must be now a substandard body. 12. 2 days ago I had surgery on my left foot (screws and plate to hold everything in place plus cutting my Achilles and another tendon and having them lengthened. 5 hours in surgery. 13. As of today I have 2 broken feet and an unable to bear any weight. So I am temporarily wheel chair bound in an apartment with 2 flights of stairs. So obviously confined to my apartment. 14. The doctors do not know for sure but assume that maybe my Type II diabetes and being overweight is playing a role in my total feet problems. 15. I have a theory of cause and effect of the totality of my disability. I think there are 5 factors (commonly believed to be) that make up my current disability (service connected or not) 1. My body is flawed. Nature made my specific unique body as flawed as it is but the ARMY accepted me as I was flaws and all, 2. The performance of my ARMY mandated duties that caused a minor underlying disability, 3. Being overweight, 4. Being diabetic, and 5. Ageing taking a tool on my body, are all believed to be more likely than not factors causing the total disability. 16. I have a theory that being overweight and my diabetes are linked to being caused (at least in part) from my underlying service connected disability through what I call the snowball effect. What do I mean. Well if I own a ski resort and there is a big hill or mountain and I make a small snowball and I start it rolling down the snow covered hill and it turns into a bolder that kills someone would I not be charges criminally with the death (maybe not intention murder but at least negligent homicide) since I started the process and the final effect of a killing sized snow bolder as a direct result of other factors exacerbating the original action to the point of danger. 17. There is also common belief but no actual scientific proof that Diabetes often (but not always) plays a role in feet problems. So maybe I am one of the people where my diabetes did not actually play any role. But even if it is more likely than not that my diabetes played a role, I believe that if the same standard is applied to the probable cause of my diabetes it would yield a preponderance that my overweight status played a role in creating my diabetes.

My questions are:
1. The downgrade is to take effect Jan 2019 less than 2 months away. Can I get the downgrading halted pending some action on my part? 2. What action(s) should I take? 3. Does having an attorney make a difference as opposed to have the DAV help me do the proper paperwork? 4. Can I get the VA to be more detailed on why they feel my current condition is not service connected? I am guessing that they like the doctors just assume that the most likely cause was some injury but I had no injury. If they admit they are assuming an injury and I can testify I did not have any injury then does that automatically change their decision of not service connected. 5. Is there not a presumption that the underlying original service caused feet problem(s) were just exacerbated to the current level by my body aging and other factors? 6. Is there any justification for the snowball effect theory linking my current situation with the original minor problem? 7. I assume that they do not require absolute scientific irrefutable proof but just the standard of a good or best or educated guess or most likely cause. It that a correct rough synopsis of the standard of proof for each side or is there a different standard of proof? 8. Is the standard of proof the same for both sides or is one side held to a different level or standard of proof than the other side? If so please explain.

Jim's Reply:

When naming a rated disability that may not be perfectly noted in The Schedule For Rating Disabilities,   VA is allowed and often does use a known and named condition that is similar. I'd have to guess that your foot condition was called flat foot at some point so that you could receive the ratings of 0% and then 30%. That the verbiage "flat foot" was used won't make any difference to what is playing out. They could have used "Foot Injuries" or similar and it would all mean much the same thing.

A 0% rating isn't unusual, it notes that the condition exists and is service connected but at that time of rating it wasn't disabling enough to rate at least 10%. When rating injuries of the foot 30% is a max rating for many conditions so when you were increased to 30%, you received the maximum rating for that condition. VA doesn't think much of your feet, in The Schedule it tells the rater, "5284 Foot injuries, other: Severe; 30%, Moderately Severe: 20%, Moderate: 10% - Note: With actual loss of use of the foot, rate 40 percent."  

The problem arises in that you applied for an increase to an existing rated condition that was already at the upper limit of 30%...VA could not go any higher than that. If I'm reading all this correctly, VA believes that whatever is going on with the foot isn't service connected and even you agree that your weight may be a cause of the problem. When you applied for an increase that couldn't be awarded, VA did what it often does and responded to you with a proposal to reduce the existing 30% because the underlying condition has improved. In the letter that you received that proposes to reduce the 30% you'll find detailed instructions on how to respond to the proposal. You can't appeal since no decision has been made yet...only a proposal is on the table so what you need to do is to provide evidence showing that VA is wrong and that there has been no improvement of the original rated condition.

You're proposing a lot of theories and scenarios that really don't influence any of this. If you don't timely respond as detailed in the proposal letter you received, VA will default to the lower rating and then you can then formally appeal that decision. Since you aren't currently formally appealing a decision that you disagree with, you aren't allowed to retain a veterans law attorney to help. If you don't care to DIY it, you'll need to find a veterans service officer who will help.

The bottom line is that you seem to have applied for an increase to a benefit that was already at the upper limit. Now VA is quietly punishing you for filing a frivolous claim. Your best bet is to carefully follow the instructions that you were provided and submit evidence that the rated condition has not improved. If and when the lower rating becomes fact, you can formally appeal by beginning with a Notice of Disagreement (NOD) and appeal.