Two Questions....

[Sgt eve]

First question: How do I know if my SC diability rating/award is permanent or if one day I just won't receive any more compensation ($) ?

Second: We have a debate going at work about this; If someone is getting SC disabilty for say.....generalized anxiety and the medicine(s) they take has caused a new onset of migraine headachs to the point where cat scans had to be taken and he has to call in sick sometimes because they are so bad. Can he be awarded more comp. for that?

Thanks for any help.

[Former Member]

Once the VA states that medical evidence supports that your disability is Permanent and Total,it still has to be in effect for ten years or more before they stop giving you C & Ps.

Then again the VA can call for a C & P anytime they want....but they would have to prove substantial improvement of the disability had occurred -to change a P & T rating back to non P & T or to lower the comp that goes with the P & T rating.

I posted a topic here recently on secondary conditions-

if a SC med causes a ratable side affect, the side affect can be claimed as a secondary condition.

Example: My neighbor , WWII vet, received a statin med in error by the local VAMC.

They thought he was a mid Eastern Asian but he is a full blooded American Indian.

Amerindians cannot take certain statin drugs.

He developed a terrible limp requiring a cane and the VA wanted to operate on his hip-

good thing someone checked him out better- the hip problem and the limp were actually from the statin drug.

We discussed a Section 1151 claim but then again the VA mitigated their medical error as soon as they could.

He is doing better but still limps a little -he has potential claim for secondary SC and is thinking about it-but it appears that the limp is going away as they changed the meds he was on.

[Sgt eve]

Once the VA states that medical evidence supports that your disability is Permanent and Total,it still has to be in effect for ten years or more before they stop giving you C & Ps.

My award letter does not state "Permanent and Total" ? Where would I find this information? Thanks for your help.

[Former Member]

If you are 100%-you can ask them to consider P & T at any time, based on your medical evidence.

In the decision to award you the 100% -they stated why they didnt- or should have said why they didnt award P & T.

It helps to get a medical statement that rebutts their rationale as to not giving the P & T status.

Also if a vet has applied for Voc Rehab and Voc Rehab determines their disability makes Voc Rehab unfeasible, this too can be used to suuport not only total disability but also P & T.

They shoudnt call a vet in after 10 years but they do- I need to correct what I said.

I got a local vet 100% and SMC in APril 1995 and the VA set him up for a C & P last year.

He called me in terrible distress- I know his complete medical pictire and helped both him and his wife prepare letters to the VARO requesting he not be given another C & P.

A few weeks later the RO sent him a letter stating he would never have to take a C & P exam again ever.

They can only drop P & T status or reduce comp froma C & P exam-due to medical proof of substantial improvement.

P & T is a medical determination and it is medical evidence that can support this status.

Edited May 17, 2007 by Berta (see edit history)

[Pete53]

First you have to be 100% before P&T comes up although you can be less but you have to have TDIU 100%. I wish that the VA just had 100% and kept it at that.

At least this is my understanding and furthermore I think that 100% that is not 100% in all aspects is a crock.

If medicine for a Service Connected Disability causes another one it can be rated.

[Ricky]

Any rating issued below 100 percent will not indicate P&T. As Berta stated they and and do sometimes will call you in for a reeval just to check you status. Even if they rate you as 100 percent P&T they can still reevaluate your disability. As full as their hands are now I would not expect such an action to be done. However, once and if they ever, get caught up they may just do so.

[Sgt eve]

Oh ok, yeah I'm not 100% so that's why it dosen't say anything about P & T. Thanks guys!

[john999]

The VBM states that for vets who have had a total rating for at least five years the VA has to show clear and convincing evidence of improvement to reduce your rating. They have to examine your entire record and not just base a reduction on one exam.

[Vike17]

§3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs ( and © of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA’s authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated. (Authority: 38 U.S.C. 501(a))

(B) Compensation cases:

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (B)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

© Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

[26 FR 1585, Feb. 24, 1961, as amended at 30 FR 11855, Sept. 16, 1965; 36 FR 14467, Aug. 6, 1971; 55 FR 49521, Nov. 29, 1990; 60 FR 27409, May 24, 1995]

Cross reference: Failure to report for VA examination. See §3.655.

§3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(B) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ——— months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

© Disabilities which are likely to improve. The provisions of paragraphs (a) and (B) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[26 FR 1586, Feb. 24, 1961, as amended at 58 FR 53660, Oct. 18, 1993]

Vike 17