tdiu Secondary Ratings ?

[Buck52]

Based on these CFR's

§§3.955-3.956 [Reserved]

§3.957 Service connection.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with §3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

(Authority: 38 U.S.C. 1159)

Questions?

If a veteran files secondary to his alredy SC 90% disability, TDIU P&T under these CFR'S the veteran can not be reduced or sent to a C&P exam Based on he has 10 years and more on the original disability,

so if the veteran files for a secondary disability that arose from his SC Disibility, then that can't touch his P&T Disability if he files for the secondary. > is this correct?

..................Buck

Edited July 3, 2015 by Buck52

[lotzaspotz]

A rating is not truly untouchable until it reaches the 20 year mark, barring fraud. Anything short of that is up for debate, including P & T status, the 10 year mark, being over 55 years of age, etc., and as such, I would imagine the VA can call for a C & P exam anytime they want to, short of that 20 year mark.

[Buck52]

38 CFR - Clearly states:

§3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and © of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

(b) Compensation cases—(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

© Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

Cross Reference: Failure to report for VA examination. See §3.655.

[26 FR 1585, Feb. 24, 1961, as amended at 30 FR 11855, Sept. 16, 1965; 36 FR 14467, Aug. 6, 1971; 55 FR 49521, Nov. 29, 1990; 60 FR 27409, May 24, 1995]

[Navy04]

We all can read and know what the CFR Policies state bud, but when it comes to the VA and ROs, you really never know until you get that Official Letter as to what happens.

[Buck52]

Maybe so Navy04

but for some veterans don't understand some of the CFR's Provisions or the interpretation of them ...Bud

......................Buck

Edited July 5, 2015 by Buck52

[Buck52]

You must have 20 years in at a specific rating for that rating to be protected. However, if you are P&T due to TDIU and you have a secondary condition that will get you HB or some higher level of SMC I would not hesitate to file. For secondary conditions you almost always need a medical opinion explaining the secondary condition and how it is secondary to the primary condition. I have DMII. I also have/cataracts. These conditions are often related but not unless you have a doctor to say so and rule out other causes. I have been p&t since 2001. I have filed about 8 claims since then and many were secondary to DMII. If you are TDIU the only way they can actually reduce you is if you go back to work full time. That is about the only way they can say you are improved enough to reduce your TDIU. TDIU is a case specific type rating.

John

John you mention veteran has to have 20 years in for ''specific rating'' do you know what that rating is? or did you mean for any particular rating?

............Buck

[Buck52]

This particular disability I refer to will not improve ,unfortunately the veteran will have this sc disability the rest of his life.

..................Buck