Consideration Of Age

[deltaj]

A recent issue of DAV's magazine mentioned a case of clear and unmistakable error where V.A. incorrectly made sort sort of determination that the veteran had been unable to find work because of age. There is a V.A. regulation that V.A. is not supposed to consider age in claims. A representative of DAV used that regulation in a winning appeal since V.A. is not supposed to use consideration of age in the claims process. Does anyone know of any winning cases where V.A. improperly considered age? Does anyone know of the regulation number that on consideration of age I am referring to?

[Pete53]

A recent issue of DAV's magazine mentioned a case of clear and unmistakable error where V.A. incorrectly made sort sort of determination that the veteran had been unable to find work because of age. There is a V.A. regulation that V.A. is not supposed to consider age in claims. A representative of DAV used that regulation in a winning appeal since V.A. is not supposed to use consideration of age in the claims process. Does anyone know of any winning cases where V.A. improperly considered age? Does anyone know of the regulation number that on consideration of age I am referring to?

Good point.

[jbasser]

Is this it?

§ 4.19 Age in service-connected claims.

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e. , for the purposes of pension.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978]

J

[darkhorse]

So in other words the VA shouldn't use age as a basis to increase or decrease a disability. If a vet is under 40 the VA can't say that since the vet is young he/she deserves a less rating. On the other hand if a Vet is 80 the VA can't use advanced age as a reason to increase the rating.

They do use advanced age in support for pension purposes.

dh

Is this it?

§ 4.19 Age in service-connected claims.

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e. , for the purposes of pension.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978]

J

Edited September 20, 2009 by darkhorse

[Philip Rogers]

Yes, I believe they do for pension. I believe the VA considers all veterans disabled for pension, at age 65, tho I can't quote the CFR at this time.

pr

So in other words the VA can't use age as a basis to increase or decrease a disability. If a vet is under 40 the VA can't say that since the vet is young he/she deserves a less rating. On the other hand if a Vet is 80 the VA can't use advanced age as a reason to increase the rating.

They do use advanced age in support for pension purposes.

dh

[john999]

I think that the use of age in denying things like P&T happens, but it is like many forms of discrimination. You may know that it is going on, but you can't prove it, and the VA will never admit it. I think the use of statistical study might show the VA does use age as a factor in claims. A PTSD vet who is 22 years old may get IU or 100%, but I bet most cases the shrink will say there is hope for recovery, or improvement etc. If you are 60 year old PTSD vet with IU their realistically probably is not much hope of going back to work because no one will hire you anyway even if you could work. Age is a factor and we all know it, but the VA is not supposed to use age. They are supposed to go by the medical facts of the claim. Does anyone doubt that the VA is reluctant to give a 21 year old permanent and total for a mental disorder unless the vet is stark, raving mad. I was 21 when I got out of the army. I could not work. I got 10%. I think age played a big part in my claim. Having long hair, and being a communist in the eyes of my VA shrink helped kill my rating as well.

[dav_marine72]

I agree with all. I'm 37 and just received TDIU P&T from my local RO. I have been fighting for 10 years to get a proper rating for my back and I just got that claim remanded at the U.S. court. basically because I was young and a Marine that didn't show pain they gave me 20% even though I had 3 discs totally gone. It took having my secondary mental condition going out of whack and being bumped to 50%, and a L3-S1 fusion which I figured was not going to work, based on my first surgery, to finally get TDIU. Now social security is the newest discriminator. They denied me twice and now I am waiting with a lawyer for a judge in 11 months. The SS guy even said on the phone you are so young how can you retire at your age. I said I'm disabled this has nothing to do with age. SS has a similar CFR where is the person meets the criteria for an aliment that age, education, and prior woprk experience can not be taken into consideration.