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MikeS

Total And Permanent Guidelines

Question

Hi all:

From 8/2002 to 9/2010 I was Total and Permanent at 70% for PTSD TDIU.

I filed a claim for Housebound 9/2010 which was denied but the 70% TDIU was raised to 100% Schedular and Total and Permanent.

Did this change from 70% TDIU to 100% Schedular cause a break in the Total and Permanent guidelines ( like for CHAMPVA and DIC) ?

If not, this August makes 10 years as Total and Permanent.

Is this correct?

Thanks,

Mike S.

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Mike S.

"Protected Ratings" are as follows:

8. Protected Evaluations Under 38 CFR 3.951 and 38 CFR 3.952

Introduction

This topic contains information about protected evaluations, including


  • protection under 38 CFR 3.951 and 38 CFR 3.952

  • protection in the absence of a monetary award

  • when protection does not accrue

  • protection resulting from retroactive increases

  • protected combined evaluations

  • reduction and discontinuance under 38 CFR 3.552

  • protection against rating schedule changes

  • reviewing evaluations after a rating schedule change, and

  • loss of protection upon reentry into active service.


    Change Date

    December 13, 2005

    a. Protection Under 38 CFR 3.951 and 38 CFR 3.952

    Exercise care to avoid violation of the provisions of 38 CFR 3.951 and 38 CFR 3.952 for compensation and pension disability benefits.

    Do not reduce an individual disability evaluation that has been continuously rated at or above the current level for 20 years or more except in the case of fraud per 38 CFR 3.951(b).

    Measure the 20-year period of 38 CFR 3.951(b) from the earliest effective date of the combined or individual evaluations.

    Note: For purposes of determining whether benefits were received for a continuous period of 20 years, include periods during which recoupment or deduction applied to an award.

    b. Protection in the Absence of a Monetary Award

    The protective provisions of 38 U.S.C. 110 and 38 CFR 3.951(b) do not require a concurrent award of monetary benefits.

    An evaluation for compensation purposes that has been continuously in effect for 20 or more years is protected whether or not the veteran elects to receive the compensation.
    Continued on next page

    8. Protected Evaluations Under 38 CFR 3.951 and 38 CFR 3.952, Continued

    c. When Protection Does Not Accrue

    Under 38 U.S.C. 110 and 38 CFR 3.951(b), protection does not accrue for

    • a veteran who renounces entitlement to disability benefits, or

    • ratings for other than compensation purposes, such as ancillary benefits.


      d. Protection Resulting From Retroactive Increases

      If a retroactive increase under 38 CFR 3.105(a) results in a veteran having been rated for 20 years or longer at a certain level, the evaluation is protected under 38 CFR 3.951(b) and may not be reduced in the absence of a showing of fraud.

      e. Protected Combined Evaluations

      Do not reduce benefits when a combined evaluation has been in effect for 20 years or more except in the case of fraud. Both the individual evaluations and the combined evaluation are protected under 38 CFR 3.951(b), even if erroneously assigned.

      Example: No rating action is warranted to reduce the erroneous 50-percent combined evaluation to the proper 40-percent combined evaluation in a case where

      • two compensable service-connected (SC) disabilities have been evaluated at 30-percent and 20-percent disabling, respectively, and

      • an improperly assigned combined degree of 50 percent has been in effect for 20 or more years.


        f. Reduction and Discontinuance Under 38 CFR 3.552

        Protection under the provisions of either 38 CFR 3.951 or 38 CFR 3.952 of a total rating or disability evaluation does not preclude reduction to a hospital rate under 38 CFR 3.552.
        Continued on next page

        8. Protected Evaluations Under 38 CFR 3.951 and 38 CFR 3.952, Continued

        g. Protection Against Rating Schedule Changes

        Public Law (PL) 102-86 states that a rating evaluation cannot be reduced solely because of a change to the rating schedule subsequent to August 13, 1991.

        However, 38 CFR 3.952 protects rating evaluations under the 1925 rating schedule which were the basis of compensation on April 1, 1946.

        Note: Evaluations in effect when previous changes to the 1945 rating schedule occurred are not protected by PL 102-86.

        Reference: For more information on the preservation of disability evaluations after rating schedule changes, see

        • 38 CFR 3.951(a), and

        • 38 U.S.C. 1155.


          h. Reviewing Evaluations After a Rating Schedule Change

          When reviewing a disability evaluation after a change in the rating schedule, determine whether the current evaluation would be continued or decreased under the prior schedule.

          Note: The disability evaluation cannot be reduced unless you can show the veteran’s condition improved enough to have warranted reduction under the prior schedule.

          i. Effect of Return to Active Duty

          The statute prohibits payment of compensation for a period in which an individual receives active service pay. Therefore, where compensation is discontinued following reentry into active service

          • continuity of the rating is interrupted for the purposes of achieving the protection offered by 38 U.S.C. 110, and

          • the disability cannot be considered to have been continuously rated during the period in which compensation is discontinued.

          Reference: For more information on the effects of reentry in active duty on disability evaluations, see VAOPGCREC 5-95.

          9. Protected Service Connection Under 38 CFR 3.957

          Introduction

          This topic contains information about the protection of service connection under 38 CFR 3.957, including

          [*]

          protection under 38 CFR 3.957

          [*]

          the provisions of VAOPGCPREC 6-2002, and

          [*]

          determining the ten-year period.

          Change Date

          December 13, 2005

          a. Protection Under 38 CFR 3.957

          Under 38 CFR 3.957, if service connection for disability or cause of death has been in effect ten or more years, propose severance only if

          [*]

          the original grant was based on fraud, or

          [*]

          it is clearly shown that the person concerned did not have the requisite service or character of discharge.

          b. Provisions of VAOPGCPREC 6-2002

          VAOPGCPREC 6-2002 held that

          [*]

          the restriction relating to severance includes awards where service connection was recently and erroneously awarded, but with an effective date more than ten years prior to the decision awarding service connection, and

          [*]

          in the absence of the veteran’s own willful misconduct or abuse of alcohol or drugs, Department of Veterans Affairs (VA) must pay compensation otherwise in order for a disability that was erroneously established as service connected, where service connection is protected from severance.

          c. Determining the Ten-Year Period

          Measure the ten-year period from the effective date of service connection, not the date of the rating, to the effective date of the actual or prospective reduction.

          10. Protected Pension Ratings Under 38 CFR 3.951(b)

          Introduction

          This topic contains information about protected pension entitlement, including

          [*]

          protection under 38 CFR 3.951(b), and

          [*]

          limits of protection.

          Change Date

          December 13, 2005

          a. Protection Under 38 CFR 3.951(b)

          Under 38 CFR 3.951(b), do not discontinue a rating of permanent total disability for pension purposes which has been in force for 20 or more years except in the case of fraud.

          b. Limits of Protection

          The protection of pension entitlement under 38 CFR 3.951(b) does not extend to Special Monthly Pension (SMP).

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My interpretation, based on the M21 , would be that your rating has the 10 year "protections" beginning 08-2012 because of this statement:

(from M21, below)

"Measure the ten-year period from the effective date of service connection, not the date of the rating, to the effective date of the actual or prospective reduction."

Edited by broncovet

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There's a lot of real neat verbiage in the prior responses but I'm not sure that either (easily) answers your specific question whether this change from 70% TDIU to 100% Schedular cause a break in the Total and Permanent guidelines ( like for CHAMPVA and DIC) ?

I believe the answer is at 38 CFR 3.22(a)(2)(i) http://www.benefits....PART3/S3_22.DOC . Please note that it says nothing abut TDIU or a single 100% or a combined 100% .... just "Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death".

Hi all:

From 8/2002 to 9/2010 I was Total and Permanent at 70% for PTSD TDIU.

I filed a claim for Housebound 9/2010 which was denied but the 70% TDIU was raised to 100% Schedular and Total and Permanent.

Did this change from 70% TDIU to 100% Schedular cause a break in the Total and Permanent guidelines ( like for CHAMPVA and DIC) ?

If not, this August makes 10 years as Total and Permanent.

Is this correct?

Thanks,

Mike S.

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Your still at the date of August 2002 for the 10 year. Since 2008 the courts has said that a veteran can be rated 100% Scheduler and still keep their TDIU rating. You may still have the TDIU.

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I get loss in all the verbage as well but even so I don't think it addressed the question.

This much I do know....

I was rated TDIU P/T from Nov 1999 Until Jan 2007. My dependants were awarded education benefits.

I was then rated 100% from Jan 2007 to the Present.. When I was rated 100% a new 10 year period of eligibility was awarded for my spouse's education benefits.

Because my TDIU award and my 100% award are two different ratings, and occured at two dates. The va has no choice but to award education benefits again.

Now if my spouse had used up the education benefits prior to my 100% rating, then even when the benefits date was restarted, it would still not have allowed her to go school for 4 more years....

So based on my own experience I can say the 10 year period is restarted for education benefits.

As to champva medical benefits....While technically the benefits restart, there is no break in benefits because regardless of being TDIU or 100% the dependant is still covered unlike education benefits there is not time limit placed on medical care benefits.

As to the 10 year rule for surviror benefits based on being Permanent and total, it is counted from the

time of the first T/P award and continues unless the P/T award is revoked or terminated.

In my case I was T/P for a TDIU award because of my back condition and later awarded 100% and P/T status because of my lung condition, and while tdiu was revoked to award the 100% rating the status of T/P was not revoked, therefor the time before my 100% award still counts toward the 10 year period for survivor benefits, as there was not a break in the status of P/T.

There is a Precidence opinion that covers the education benefits as I explained above, but right now as I am on my way out the door, I don't have the time to find it......

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      Criterion H: [X] The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or
      another medical condition. Criterion I: Which stressor(s) contributed to the Veteran's PTSD diagnosis?: [X] Stressor #1
      5. Symptoms ----------- For VA rating purposes, check all symptoms that actively apply to the Veteran's diagnoses: [X] Depressed mood [X] Anxiety [X] Suspiciousness [X] Chronic sleep impairment [X] Disturbances of motivation and mood [X] Difficulty in establishing and maintaining effective work and social relationships [X] Difficulty in adapting to stressful circumstances, including work or a worklike setting
      6. Behavioral Observations -------------------------- The veteran arrived on time for his scheduled examination. His identity was confirmed by having him provide his full name and date of birth. The veteran presents as a tall, obese, Caucasian male who appears the stated age. He was dressed casually and exhibited good grooming and hygiene. He had tattoos visible on his lower and upper extremities. His posture, gait, and psychomotor activity were within normal limits. His manner of interaction was cooperative, courteous, and friendly. His speech was normal in rate, rhythm, tone, and volume. His thought processes were clear, logical, coherent, and goal-directed. Veteran reported his mood to be depressed, with affect congruent. He denied suicidal ideation, but admitted to thoughts of death and wondering if others would be better off without him. He denied homicidal ideation as well as auditory and visual hallucinations.
      7. Other symptoms ----------------- Does the Veteran have any other symptoms attributable to PTSD (and other mental disorders) that are not listed above? [ ] Yes [X] No
      8. Competency ------------- Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No
      .9 Remarks, (including any testing results) if any -------------------------------------------------- In my opinion, the veteran meets DSM 5 diagnostic criteria for posttraumatic stress disorder, which is more likely than not secondary to military trauma. In this veteran's case, there is a strong component of shame that is also associated with his military service and is foundationally related to his depressive disorder. His experience of freezing during 3 artillery attacks is something that is associated with feelings of overwhelming shame, worthlessness, helplessness, and inadequacy for the veteran. These thoughts and feelings contribute significantly to his depressive condition, and contribute meaningfully to his PTSD symptoms as well. The veteran also experienced significant losses during military service that have likely aggravated his PTSD and depressive conditions. Notably, the veteran's grandfather died in 2011 when the veteran was deployed to Afghanistan, and his best friend committed suicide on Christmas day in 2013. Both losses were experienced by the veteran as emotionally traumatic and contribute to his symptomatology. The veteran has developed a dysfunctional coping mechanism of excessive alcohol intake in his efforts to suppress negative feelings associated with his traumas. As his excessive alcohol use appears to be largely in the service of avoidance of distress and suppression of intrusive/reexperiencing symptoms, it is my opinion that his alcohol use disorder is secondary to his PTSD and depressive disorders. The veteran's mental health symptoms have severely impaired his functional capacity. He is socially disengaged and avoidant. He has difficulty expressing himself emotionally, showing empathy, or forming emotional bonds with others. Occupationally, the veteran has exhibited significant dysfunction as he has been unable to maintain employment due to anxiety, depression, avoidance, alcohol abuse, irritability, shame. Hs shame about his reactions of freezing during artillery attacks prompts him to avoid interpersonal interactions as much as possible as he fears that the topic of his military service will arise. Recently, the veteran has begun outpatient mental health treatment in the form of individual counseling, and he is awaiting an appointment for trial of medication.
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    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 6 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
        • Like
    • Precedent Setting CAVC cases cited in the M21-1
      A couple months back before I received my decision I started preparing for the appeal I knew I would be filing.  That is how little faith I had in the VA caring about we the veteran. 

      One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing.  I could not understand for the life of me why so many obviously bad decisions were being handed down.  I think the bottom line is that the wrong type of people are hired as raters.  I think raters should have some kind of legal background.  They do not need to be lawyers but I think paralegals would be a good idea.

      There have been more than 3500 precedent setting decisions from the CAVC since 1989.  Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.

      The document I created has about 200 or so decisions cited in the M21-1.   Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims.  Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why.  Most of these decision are not cited by the M21.

      It is important that we do our due diligence to make sure we do not get screwed.  I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve

      M21-1 Precedent setting decisions .docx
      • 5 replies
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