tdiu Five Years

[john999]

I have heard the topic of Five Years of Service Connection for TDIU or 100% bandied about as if it has some significance. What is the significance of be SC for Five Years at a certain rate such as IU?

[Berta]

John- I think you mean the Five year reg 38 CFR 3.344© (2005)

Per the VBM on page 365 it means that any rating evaluationthat has Stabilized (continued at same level for consistent period of time) cannot be reduced unless all the evidence of record shows sustained improvement in the disability.

Also in Schafrath V Derwinski the court expounded on this-

adverse decisions cannot be based on a single incomplete or inaccurate report and the VA must consider the complete medical picture of the veteran.

However- a vet who -for some reason gets a proposed reduction- regardless of whether their rating has been in effect 5 years or less still should get the same criteria applied to there situation.

Lehman V Brown- the finding was that the BVA violated 38 CFR 4.1 and 4.2 because they relied one one sole medical report and attempted to reduce the rating yet the regs clearly state that all evidence and medical records have to be considered.

My husband had 30% SC in affect for over 5 years when he got employment at the VA. The union guy told him the VA would mess with his comp- within months they attempted to reduce his comp to 10% based on two factors-

1.the veteran had gained substantial employment

2. and the veteran was successfully pursuing a college degree-

In his NOD-which I prepared the very next day ( Christmas 1989)

(of course he received this news on Christmas eve)

I just found it the other day-getting my VA stuff in order-

I pointed out to VA in the NOD that

1. the VA personnel director had discriminated against him for a full time position,when he was hired and they had to make this right with a part time crap job in the VA kitchen. The Personnel director was canned.(I think I supplied copy of the fed qualification thing that said he was qualified for an engineers position at the VA and I referred them to the VA director who documented the stink I made about all this-as a witness)

I stated Since the part time VA crap job was not a job that fully recognized the veteran's employment background (PHVAC,Nuclear Equip Operator, Fireman, engineering etc) it was not substantial part time employment,whereas had he been given the job he first applied for and was qualified for, he would have had full time VA substantial employment.

2. The veteran had been in college for only one full semester under Voc Rehab and they already had to give him accomodations to his PTSD. The ticking of the exam clock made him think he was in a mined zone in Nam, and they let him take his exams in a different room.Also I stated One semester does not make one a rocket scientist.

Within 6-7 months AMVETS called and the vet rep told me he had been reinstated at 30% due to the NOD.

Rod had agreed to take the 10% to wait out the NOD results- he feared any sort of VA overpayment if he lost the 30%-but the check was in the mail retro right away for that.

My long point here is- tell them like it is-

in terms they can comprehend as to why their decisions are wrong.

Edited June 21, 2006 by Berta