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Permanent And Total Your Input Please


Tbird

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  • Community Admin

i am sending an email to the va asking them to define permanent and total and to ask the following questions

if you are permanent and total what if any reasons will they take that status away, and what reference to usc 38, cfr38 and va manuals details that process

if you are rated permanent and toal is it protected, except for fraud, and what reference to usc 38, cfr38 and va manuals details that process

what is the 10 year, 20 year protection mean and what reference to usc 38, cfr38 and va manuals details that process

etc.

what other questions or how should i form this query to the va's email system.

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  • HadIt.com Elder

Tbird,

if you are permanent and total what if any reasons will they take that status away, and what reference to usc 38, cfr38 and va manuals details that process

The only way the VA can legally take an IU rating away is if they become aware that the veteran has gained employability. If the VA becomes aware that a veteran with IU is working, that will prompt them to schedule a C&P exam to to take a look see. I'll see if I can't find the regulations as I don't know it off the top of my head.

if you are rated permanent and toal is it protected, except for fraud, and what reference to usc 38, cfr38 and va manuals details that process

If the IU rating has been in force for more than 20 years, then it is protected and cannot be severed/reduced, except for fraud. A while back i ran across the regulation, but I can't seem to find it. When I do, I'll post it for you.

what is the 10 year, 20 year protection mean and what reference to usc 38, cfr38 and va manuals details that process

If a rating has been in force for 10 years, service-connection cannot be severed unless fraud was involved. See §3.957. If a rating has been in force for 20 continuis years, the rating cannot be reduced. See §3.951.

Vike 17

Edited by Vike17 (see edit history)
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How does the VA define "unusual circumstances?"

Also, do they scrutinize 100% schedular disability ratings differently than 100% TDIU? If so, what criteria is applied in each case?

That's what I would like to know about P & T.

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I'd like to know those answers. I just recieved P&T status for a 100% schedualar rating and am wondering how safe it is. I can file additional claims that I'm sure I'd get awarded, but don't think it's worth the possible re-eval on the current rating. I still have a lack of trust for the VA proccess.

Time

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Time, I don't think a 100% schedular rating, or any other rating for that matter, enjoys any degree of "safeness" before the twenty-year mark. My husband is 100% schedular P & T effective August 2003, so there's still the possibility the VA will try to reduce him.

My intention with his claims is to have everything that warrants a rating, in fact, rated. I'm doing this because I expect the VA to try to reduce him sometime in the next few years and want to create a margin of protection.

Right now, he's got claims pending at the VARO, two remands pending at the Appeals Management Center, and a pending appeal on several other claims before the Court of Veterans Appeals.

I expect them to take a run at him strictly because of his current rating, and not as punishment for filing additional claims or appeals. So, my position is that we've got nothing to lose by pursuing ratings for conditions that deserve to be rated.

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Guest jangrin
Time, I don't think a 100% schedular rating, or any other rating for that matter, enjoys any degree of "safeness" before the twenty-year mark. My husband is 100% schedular P & T effective August 2003, so there's still the possibility the VA will try to reduce him.

My intention with his claims is to have everything that warrants a rating, in fact, rated. I'm doing this because I expect the VA to try to reduce him sometime in the next few years and want to create a margin of protection.

Right now, he's got claims pending at the VARO, two remands pending at the Appeals Management Center, and a pending appeal on several other claims before the Court of Veterans Appeals.

I expect them to take a run at him strictly because of his current rating, and not as punishment for filing additional claims or appeals. So, my position is that we've got nothing to lose by pursuing ratings for conditions that deserve to be rated.

Vicki,

Do you think the VA will try to reduce your husbands ratings because they expect him to get better or is it because you feel the VA policy towards veterans compensation and claims will get tighter over the next few years? Putting pressure to reduce Veterans comp benefits?

I think the veterans who have multiple claims should go after all they are entitled to. However, now that I've been helping my husband through this process, it understand why they back off in some cases once they get a "fair" rating. To put at risk all they have worked and waited for is asking a lot, especially as they get older and less able to provide financially. Financial security is tops on the list after 55.

I believe the VA is so busy with claims and such, I wouldn't think they have time nor the desire to try and take benefits away, unless they have some kind of personal vendetta against a certain veteran. Which I'm sure happens.

We will continue, like you are doing, to make sure all my husbands claims are rated fairly. It's hard to work in a BROKEN system. I like having the buffer in the disability, it makes good sense, who knows whats in store over the next 10 years.

Jangrin B)

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Exempting cases of fraud, VA regulations state that service-connection for an individual disability cannot be canceled if it's been rated for at least 10 years (but can be reduced). The regulations go on to state that a service-connected disability rating cannot be reduced if it's been in effect at least 20 years. I read that to mean each individual rating, not the overall rating. The VA granting a veteran P & T status does not, by statute, supercede this provision, as far as anything I've been able to find. If I'm wrong, I hope someone will provide a link to the regulation, because I've been unable to find it on my own.

I believe that before that twenty-year mark is reached, the veteran is subject to C & P exams to determine whether any of his conditions have improved, and should not be surprised if he receives such notice. That is the way the law is stated.

The regulations also give the VA an "out" when it comes to reducing ratings that had previously been granted P & T status, giving the VA permission to review those ratings under "special circumstances," circumstances that remain undefined. This board contains messages from veterans who were granted P&T, only to later be called in for a C & P exam.

The regulations have holes in them a battleship could pass through to accommodate VA discretion.

For that reason, I assume P & T isn't permanent and total, and I assume that anytime a veteran hasn't held a rating for each disability for at least 20 years, he's subject to reduction.

My husband's service-connected disabilities are due to internal parts that have been removed and don't regenerate or repair themselves, and in spite of that, it took the VA 13 years to grant him 100% schedular P & T. Maybe it's due to my experiences with the VA since the beginning, but I don't have high expectations of them, so I prepare accordingly.

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Guest jangrin

Vicki,

Wholly-cow, I didn't realize that they have to be rated for 20 years and until that time the VA could change their own findings B) . If this is the case, it makes sense then to keep working the claims. I see your point.

Thank you.

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  • HadIt.com Elder

If you are rated IU and are over 55 and you are not working what basis would the VA have to reduce your rating? You can scare yourself silly but I think that unless something dramatic happens in your condition after a certain age the VA just forgets about you. That is the problem in many cases. If you have been rated IU for over 5 years I think it is much harder to reduce you since the VA has to demonstrate you are able to work. How would they do that if you have not worked in 5 or ten years? Just don't push the envelope by tring to work in some minimum wage job to bolster the IU money. The VA and SSA have limits on what you can make and still be considered disabled. If you work steady the SSA is going to examine you even if you are just making minimum wage. The VA is not sending out those IU verification letters for their health. Their is intent behind that letter.

I believe in working your claims even if you are IU or 100% if the conditions may lead to your death or there is an opportunity for an SMC like erectile dysfucntion due to DMII. Like RickB says once you get IU it is very hard to get 100% schedular so the A&A and housebound are probably out unless you want to try for 100% schedular. My advice is that once you get a rating never say anything good about your condition. Even if meds are working don't give an unqualified endorsement to the meds as in "I fee much better now".

If you are IU never mention work. All these statements end up in your medical records for the VA to quote if they did decide to try and reduce you for some reason. Think negative! If you are over 55 and have not worked in five years who would hire you anyway for any meaningful employment so dont' mention it. This is a cynical view but it is the safer view. Due to chronci pain syndrome I am unemployable now even though I was given IU for a mental condition. No doubt the chronic pain contributed to the IU. Anyone who suffers from chronic pain has their life turn to shit. I started out with severe pain in extremities and now the back hurts all the time and I am doped up so I can't drive and can't sleep. Wonderful and I am trying new treatments and I get kicked down the hill on a regular basis. The isolation of being disabled is another big problem for vets. We have some great posters on these subjects.

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"If you are rated IU and are over 55 and you are not working what basis would the VA have to reduce your rating?"

The basis could be justified under the "special circumstances" that allow the VA to reconsider P & T status. Veterans with conditions that have been rated for almost 20 years could possibly find themselves called in for C & P's for one last check before the ratings become untouchable.

Do you know what "special circumstances" means, because I can't find discussion of that anywhere in 38 CFR or M21-1.

Please show me anything in 38 CFR or M21-1 that clearly states IU, or anything else rated P & T is exempt from the 20 year rule. Part C in M21-1 discusses protected ratings, but doesn't offer any protections outside of the 20 year rule that I can see.

I do need to correct myself on something I said earlier, however. I read Part C over again, and it appears combined ratings that have held fast for at least 20 years are protected from the possibility of being reduced.

It would make many of us a lot more comfortable thinking P & T means exactly that.

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  • HadIt.com Elder

Ok, I finally found what I was looking for as far as reduction in IU awards after they are protected after 20 years. M21-1-4, §31.58(d) states the following;

31.58 INDIVIDUAL UNEMPLOYABILITY (IU) CASES

a. Only cases with earned income over $6,000 are referred to ROs.

b. If, after initial review (see paragraph 31.49), verification of earnings from employment is needed, follow paragraphs 31.52 through 31.56.

c. When verification is received (or after 60 days if no response from payer or veteran), refer the case to the rating board to determine the need for a physical examination.

(1) To determine the need for an examination, the board shall review the information submitted by the veteran and/or the veteran's employer. If past employment questionnaires, VA Form 21-4140, indicate the veteran reported the earnings and VA failed to take action, it is an administrative error.

(2) After all evidence has been reviewed, the rating board shall prepare either a confirmed rating or a memorandum rating proposing to reduce benefits and refer the case to authorization. If the rating board proposes to reduce benefits, follow the provisions of Chapter 9, "DUE PROCESS." Refer to Chapter 36 if fraud is for consideration.

d. There may be cases where evaluations are protected under 38 C.F.R. 3.951. If earnings began AFTER protection, take no further action. If earnings began BEFORE protection, complete development is required because benefits are subject to reduction if continuation of the rating is based on fraud. See 38 C.F.R. 3.1(aa)(2).

Furthermore, M21-1MR, Part 4, Subpart II, Chapter 2, section F, §28© states;

Monitoring changes in employability status is not required when the veteran is 69 years of age or older,

has been rated totally disabled due to unemployability for a period of 20 continuous years, which protects the evaluation from future reduction under 38 CFR 3.951(a), or is assigned a 100-percent schedular evaluation.

So, in essence, if a veteran has been rated IU for a continious period of 20 years or more, the IU rating can not be reduced, i.e. taking away, as it is protected, regardless if the veteran starts to work after the 20 years period has elapsed.

With regard to reducing Iu before the determination is protected, according to M21-1MR, Part 3, subpart 4, §139c), it states;

Cite clear and convincing evidence of actual employability when discontinuing a total rating based on individual employability

Vike 17

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Good move. I don't see where the VA values internal parts very much. In their cancer ratings - they pay additional benefits if you lose part of a breast or part of a testicle to cancer. But they do NOT pay additional if you lose part of a lung, colon, stomach, etc. It looks like - if it isn't something you can visually see - they don't think you will really miss it.

Free

My husband's service-connected disabilities are due to internal parts that have been removed and don't regenerate or repair themselves, and in spite of that, it took the VA 13 years to grant him 100% schedular P & T. Maybe it's due to my experiences with the VA since the beginning, but I don't have high expectations of them, so I prepare accordingly.
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