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Total And Permanent Guidelines

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MikeS

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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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