ptsd Protected Ratings and Increases/reductions

[USMC_VET]

So I have not put much thought into the protected ratings until the last few months, mostly because i hit my 4 year mark for my PTSD 50% rating this fall and will hit the 5 year next September.

I have done research into it, google searches and searched the forum.  The forum search didnt really pull up much i think due to the change in format and http:// listing for the posts and how the internal search engine finds them.  I know that is going to be fixed soon.

This is one part question from me and one part info for other vets out there...

What made me want to talk about this is the mention ASKNOD had in his blog post today regarding 5 year ratings (https://asknod.wordpress.com/2015/11/04/hadit-coms-radio-show-smc-knowledge/) in that the VA will reduce folks only to grant it again and restart the clock.

What i know is this

5 years- you can be reduced however they have to show SUSTAINED IMPROVEMENT with your disability, it cannot be based on say on C&P exam or say if you say in a VA PCP exam and they ask how are you feeling today? depressed? and you say no i have been doing better this week so far, they cant reduce you based on that there needs to be evidence of improvement over time.  ie, there needs to be more than one mention from a doc or yourself that you are "better".  All of the medical evidence at hand has to show this improvement over time. 

SNIPPET- You can be reduced, you can have SC severed.

 

10 years - You can be reduced but your SC rating cannot be severed unless FRAUD was present.  This applies to any rating for any period of time though.  So the only way you can lose your SC is if you lied to get the SC, you faked your service or you faked your discharge status. 

SNIPPET- You can be reduced, however you cannot be reduced below 0%

 

20 years- You cannot be reduced below the lowest rating you had for a specific SC after 20 years.  So if you were initially awarded 30% and then 2 years later you were increased to 50% after 20 years of the original effective date you cannot be reduced below 30%.

SNIPPET- You cannot be reduced below the lowest rating.  SC cannot be taken away.

 

My question is more detailed regarding how increases work.  granted i have a long way to go to get to 20!

 

Scenario 1:

Veteran is granted 50% for PTSD in 2000

Veteran applies for increase and is granted increase to 70% in 2005

In 2020 the Veteran meets the 20 year mark and his 50% rating is protected (absent fraud).  Does this also mean that in 2025 that his 70% rating is protected? Or is protected only once per SC and at the first (nominally lowest) rating? 

 

 

Scenario 2:

Veteran is granted 50% for PTSD in 2000

Veteran applies for increase but is reduced to 30% in 2005.

In 2006 he applies for increase and is granted 70%.

Does this mean.....

1) in 2020 your rating is protected at 30%

2) In 2020 its protected at 50%

3) In 2025 its protected at 30%

 

I was going to venture to guess based on the statemented that the VA does reductions and then grants increase back to original rating so they can restart the clock on the 5 year that this also applies to 20 year, but i was unsure.  I havent been able to listen to the podcast due to technical limitations with the net the last few weeks.

 

I also wanted to touch on what ASKNOD had mentioned in the blog post regarding the VA policy of reduction, then granting increase to restart the clock.

When i had my proposal to reduce in January and i fought it and eventually won 6 months later, no reduction, continuation of benefits at current level the VSO commented that i would be scheduled for another C&P soon.  I am going to guess, even though they just did it a year before they want another C&P to get another crack at reducing me.  I am going to get another IME here soon as protection and probably file for an increase to pre-empt them.

However for those vets out there that are going to be hitting their re-examination periods, do not take this lightly and do not treat it like some "going through the motions" exam.  it is not, this is as much a fight as your initial claim was.  I know not everyone has the money/ability to do so, but if you can go out and get an exam done by a private physician and/or IME for your condition prior to the re-examination period I would highly recommend that.  Just like an initial claim you want as much evidence in your favor as you can get.  I am lucky in that i still am able to work (for the moment) and have decent insurance.  So for a low fee i keep going out once every 3 months and get "check ups" done for my SC issues with a private physician so that i can keep my medical records up to date and allow for there to be a body of evidence.

When the VA schedules you for an exam go through your C file and prior C&P exam and see what was noted for your condition.  Remember what they stated and how it relates to the rating for the DC you were rated under in the 38 CFR and make sure you make some notes to take with you so that you touch on all the big and little points that got you that rating in the first place.  I hate having to say this again and again, but this is not a lie to get by thing.  If you have gotten better, truly, then be happy.  I know most vets out there would rather be truly at a 0% level for PTSD than living with the symptoms of 50% and would trade that any day of the week.  However if the areas that are ratable symptoms as noted in your original C&P are the same or worse than MAKE SURE YOU LET THEM KNOW.  Treat this like a claim, write up a sworn declaration that states how your condition has stayed the same, gotten worse in areas, etc. 

I am unsure of this part and whether or not you can do this or it will help or not.  I am planning on putting together all my evidence just like a claim and mailing it to claims intake center with the cover sheet with my evidence list stating that "this is to be considered in regards to my re-examination for ______".  I dont see why this would not be allowed, or looked at since the re-examination is just like a claim in that the C&P re exam is going to be sent to a rater who will try their damndest to make a case for reduction. 

Please inform me of whether or not you "can" do this or not, or most importantly if the they are legally required to review the evidence you send.

In any event it is vital to continually keep up on your SC's and keep compiling evidence.  Every VA docs visit print out the notes, medication changes, etc from that and insert it into your "__SC NAME___ EVIDENCE FOLDER".  After EVERY SINGLE private phsyician visit i contact their records office 3-7 days later and request all records, relating to my visit.  I also scan  them to keep a digital copy and have folders for all my claims, etc. 

If the VA decides to reduce you, you have the evidence ready to go no need to stress out over trying to scramble around to different hospitals and get their records, etc.  You have 60 days to send in evidence before a decision is made so you have time to line up a IME (i would also have names of IME's for each of your SC's in a list and ready to call if you need to) and get that done before the timetable.  Know also that even if you have all the evidence you want to submit ready to go and mail it out the same day as the reduction proposal is received the VA will not do anything until the 60 days are up.  This is what happened with me.  within two weeks of stressful scrambling I had an IME and everything sent to them.  I had to wait another 8 weeks before i heard anything and then another 2 months before they made their decision. 

ALSO VERY IMPORTANT. If you receive a letter proposing to reduce your rating do the following.

1) REQUEST A DRO HEARING

I know some people have an issue with DRO's, they are useless, etc.  Make your own decision.  I think you have a better chance with a DRO than a VSR, but thats my opinion.

2) REQUEST NEW C&P

They are not required to do this for you, however if you can make the case that the exam was incomplete, that hte examiner ignored evidence presented, misrepresented statements or say that you were extremely uncomfortable in the exam and had a mental episode (you clammed up etc and didnt explain well enough) they might grant a new one.

3) REQUEST CONTINUATION OF CURRENT BENEFITS AT CURRENT LEVEL UNTIL THE HEARING IS FINISHED AND DECISION IS REACHED

This can be tricky.  What this basically means is that if they decided to reduce you from say 50% to 30% (combined) you would not begin to see the loss of those benefits until 60 days after the date on the letter of proposal to reduce.  If you ask for the continuation of benefits until decision is reached through DRO hearing, they will continue to pay at 50%.  If you win no biggie.  If you lose however you have to pay back the difference.

Example:

You are notified Jan 1 2015 that they want to reduce you from 50% to 30% and you request the DRO hearing and conintuation of benefits.  Your hearing is not until September 2015 and the decision is made to reduce you, you will will have to pay back the difference ($428.38 per month) which would end up being from March to September, $2998.66.  Personally what i did when i was under the gun of a proposal to reduce is that i reduced my own budget by that.  I cut us down to bare bones to live on what my reduced rate would be and i stashed it away.  This way if i lost i would not only be harder up but in debt, and if i won it would be a chunk of savings.  I know not everyone can do that, but i would do it if you can.

 

NOTE:  It is also important to note that if/when they schedule you for a re-examination you HAVE TO SHOW UP.  Dont blow it off and think "if they dont re examine me then they dont have a reason to reduce me!"

WRONG!  If you dont show up and you dont make a honest effort to reschedule they can will reduce your benefits or even terminate your SC.  And that will be a 10x harder row to hoe than a proposal to reduce.

 

So in short even if you win your claim or the increase that is not the end, the VA will continue to try and come after you to reduce you, especially before the 5 year mark so dont just coast after you win.  Its just like war, even after you win a major battle you need to continually work on your defenses in case of a counter-attack.  Dont stress out, be happy, but always be ready.

 

 

 

 

 

Edited November 5, 2015 by USMC_VET

[Navy04]

I really worry about all of us Vets, cause I just don't get how the VA puts is thru Hell and Back to get SC, as if that was not hard enough, then a Bean Counter sits behind a desk and decides when to push Screw Vet or Not on the Keyboard!!!   Sorry for the Vent and thanks for the info

[Vync]

Veterans are essentially considered guilty until proven innocent

[Vync]

I hear that Andyman,

I went through a reduction from a VA unfriendly veteran Doc one time....this doc took home the veterans c-file and study it trying to find any flaws  he went over my c-file with a fine tooth comb paint and powder...but I NOD  for DRO Hearing and had I a Specilist to examine me and I won over the VA Dr   the DRO said the VA Exaimner went to far and delved back into my c-file for unnecessary reasons

he still at my VAMC too and all the veterans don't like him   he looks to be about 70/75 years of age too!

I will never go see him again and my DRO said I had that right. as long as I was willing to go take a C&P If the VA needed me to?..I said sure as long as it not that idiot  he just laugh..

 

.......Buck

Buck,
If I am not mistaken, taking home a C-file should be highly illegal. Records or the entire file itself could go missing. If that doc documented this fact anywhere in your records, I recommend he be reported. Odds are he probably told you this verbally so there is no paper trail, but either way there should be an investigation. We don't need doctors who don't care about the rules looking over our brothers and sisters.

[Buck52]

Oh yeah Vync  he verbally stated it...I looked with a fine tooth comb paint &powder for that statement too.(NOT THERE)

he just mention'' I'll research your c-file all the way back to when you ETS from the military'' 1972...this was in 2002

but he did tell me and my wife (she was with me)  that he will take my c-file home...he said'' I' am not the one that makes the decision   but I'll take your c-file home with me tonight and look it over  for any thing that will help''....what he meant by that is anything that will help get me reduced back to 0%

I had to go barrow $$ at the Bank to get this IMO. & it sure put a hard ship on us to waiting...eh!

but thats water under the bridge now...I'll never go to him thats for sure.

I even hate seeing him walking around my VAMC  ...I see him ever now and then...its all I can do to not say anything to him.

[broncovet]

Katrina Eagle had a very good article on reductions a few years ago, and Yes, Asknod is very familiar with reductions having written on them.  I will try to summarize the regulations, Im sure you can look them up if you like.

1.  Five year or permanent ratings.  This is a significant "protection".  This is 38 CFR 3.344.  Its often overlooked noting the different heading that "reductions" or severence of service connection.  

https://www.law.cornell.edu/cfr/text/38/3.344

In part...

 "Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life."

end regulation quote.  

Snippet:  To reduce you after 5 years or P and T, the VA has to show that you improved enough to go back to work, and that it is not an "episodic" improment, but is permanent.  

2.  10 year severance protection.  Fast letter 6-2002 should answer your questions.  I will put this at the bottom of the page.  

Snippett:  The effective date of the rating establishes the 10 year mark, not the date of decision.  So, its possible to get protected immediately upon service connection, when it takes the VA 10 years to process your application.

 

3.  20 year protection except in cases of fraud.  

Snippet:  The effective date is the effective date of rating.  So, its possible to get protected immediately if it takes VA 20 years to process your claim.  For that reason, Alex got protected in a matter of months as it took VA almost 20 years to process his claim.  

Section C.  Protected Ratings
Overview

In this Section    This section contains the following topics:

Topic    Topic Name    See Page
8    Protected Evaluations Under 38 CFR 3.951 and 38 CFR 3.952    8-C-2
9    Protected Service Connection Under 38 CFR 3.957    8-C-6
10    Protected Pension Ratings Under 38 CFR 3.951(b)    8-C-7

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
effect of change in diagnostic code (DC), and
effect of return to active duty.
    
Change Date    September 23, 2014

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 Change in DC    When manifestations of a disability have been evaluated at a particular level for 20 years or more, Rating Veterans Service Representatives (RVSRs) should exercise caution when assigning a new diagnostic code (DC) for symptoms of that disability.  RVSRs should consider whether the new DC includes the symptoms protected under the current evaluation or whether the new DC considers separate and distinct symptoms.  VA is not prohibited from changing the DC for a protected evaluation if it does not result in a reduced rating for that disability.  

Continued on next page

, Continued

 (continued)    Example:  A Vietnam Veteran has been SC for a through-and-through gunshot wound (GSW) to the right leg (MG XI) evaluated at 10 percent under DC 5311 effective November 21, 1968.  The Service Treatment Records specifically indicate that the nerves were not affected. Over 40 years later, the Veteran is granted SC for type II diabetes mellitus.  The GSW to the right leg has remained static; however, the medical records indicate that he has diabetic neuropathy with right foot drop.  Since both the GSW and the peripheral nerve paralysis (foot drop) affect propulsion of the right lower extremity, separate ratings cannot be granted without pyramiding.  However, a single 40 percent evaluation may be granted under DC 8521, which would consider both the symptoms of the GSW as well as the new diabetic neuropathy with foot drop.

Reference:  For more information on
protection of evaluations and DC codes, see Murray v. Shinseki, 24 Vet. App. 420 (2011)
pyramiding, see
38 CFR 4.14, and 
Esteban v. Brown, 6 Vet.App. 259 (1994).

j.  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).

 

epartment of Memorandum

Veterans Affairs

 

Date: July 11, 2002 VAOPGCPREC 6-2002

From: General Counsel (022)

 

Subj: Protection of Service Connection—38 U.S.C. § 1159; 38 C.F.R. § 3.957
XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX

 

To: Director, Compensation and Pension Service (21)

 

 

QUESTIONS PRESENTED:

A. May the Department of Veterans Affairs (VA) sever service connection of a disability erroneously and recently granted but with an effective date more than ten years earlier than the date of the decision granting service connection?

B. If such a grant of service connection is protected from severance, must VA retroactively award compensation for that disability, if otherwise in order?

COMMENTS:

1. The relevant facts are these. The veteran served on active duty from January 18, 1949, to September 5, 1953. On December 1, 1954, the veteran filed a claim for compensation or pension based on infantile paralysis, which reportedly began on July 10, 1954. A private physician certified in January 1955 that he had treated the veteran from August to November 1954 for acute anterior poliomyelitis that began in July 1954. On May 11, 1955, a Veterans Administra­tion (now Department of Veterans Affairs (VA)) regional office denied service connection for residuals of acute anterior poliomyelitis because “it developed acutely at a date beyond the maximum incubation period for poliomyelitis following veteran’s period of Korean service.” The veteran did not appeal that decision.

2. On January 3, 2001, a VA regional office found clear and unmistakable error in the May 1955 denial of service connection, on the basis that the chronic disease manifested to the required degree within one year from the claimant’s separation from service. Current medical evidence shows that the veteran continues to have residuals of polio. The regional office established service connection for residuals of acute poliomyelitis to include paraplegia of both lower extremities effective from December 1, 1954, rated the disability zero percent disabling from that date and 100 percent disabling from August 10, 2000, and deferred a reevaluation of the disability from December 1, 1954, pending receipt of additional evidence. Citing the provisions of what is now 38 C.F.R. § 3.379¹ (which were in effect when VA received the veteran’s original claim), you find no error in the May 1955 denial of service connection and believe the recent grant of service connection to be erroneous.

3. Section 1159 of title 38, United States Code, provides:

Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection 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 mentioned period shall be computed from the date determined by the Secretary as the date on which the status commenced for rating purposes.

VA’s implementing regulation, 38 C.F.R. § 3.957, essentially tracks the statutory language. With respect to computation of the ten-year period, section 3.957 provides, “[t]he 10-year period will be computed from the effective date of the [VA] finding of service connection to the effective date of the rating decision severing service connection.”

4. Section 1159 limits VA’s authority to correct clearly and unmistakably erroneous determinations of service connection. VAOPGCPREC 13‑96. Pursuant to section 1159, a determination of service connection that has been in force for ten or more years generally may not be severed, even if it was clearly and unmistakably erroneous. Id. This office has previously interpreted that provision as protecting grants of service connection even if erroneously based on an inapplicable presumption. VADIGOP, 8-6-84 (9-2 Service Connection) (former section 359² protects service connection of diabetes presumed to have been incurred or aggravated in active service even though claimant’s only service was active duty for training); VAOPGC 8‑83 (9-30-83) (same).

5. Section 1159 protects a grant of service connection from severance if the status of service connection “has been in force for ten or more years,” unless the grant was based on fraud or military records clearly show that the person concerned did not have the requisite service or character of discharge. To determine whether a grant of service connection “has been in force for ten or more years,” the statute directs that “[t]he mentioned period shall be computed from the date determined by [VA] as the date on which the status commenced for rating purposes.” 38 U.S.C. § 1159. This latter provision was added to the statute in 1962, Pub. L. No. 87‑825, § 6, 76 Stat. 948, 950 (1962), to make consistent the beginning of the periods for protection of service connection and for protection of certain disability evaluations,³ S. Rep. No. 87‑2042 (1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3261; Explanatory Statement on H.R. 7600, 87^th Cong., reprinted in 1962 U.S.C.C.A.N. 3263, 3269. One period began from the date on which the decision granting the rating was signed; the other began from the date on which service connection itself became effective. Id. The amendment was made “to assure that the period in question begins from the date determined by [VA] as the date on which the status commenced for rating purposes.” 1962 U.S.C.C.A.N. at 3261. Consistent with the legislative intent demonstrated by this legislative history, VA’s regulation specifies that the ten-year period begins from the effective date of the VA finding of service connection. 38 C.F.R. § 3.957.

6. Had VA erroneously granted service connection for the veteran’s poliomyelitis in 1955, there is no doubt that section 1159 would now protect that service connection from severance, because it would have been in force for more than ten years. Because the ten-year period mentioned in section 1159 is computed from the effective date of the establishment of service connection, and not from the date of the decision establishing service connection, it matters not in this case that service connection was only recently granted, but with an effective date more than ten years earlier than the date of the decision. Further, the statutory reference to service connection having “been in force” for the requisite period cannot be read, in the context of the statute, as requiring that the rating actually have been extant for that period. The statutory reference to “the date on which the status commenced for rating purposes” clarifies that a retroactive period is counted in the computation, because service connection would be considered to have commenced for rating purposes at the beginning of the retroactive period. For example, if a veteran established service connection based on a claim filed within one year of service discharge, the date on which the status commenced for rating purposes would be the day after service discharge. 38 U.S.C. § 5110(b)(1). The retroactive period from the day after service discharge to the date of the decision establishing service connection would be counted in computing whether service connection has been in force for ten or more years. Therefore, VA may not sever service connection (unless the exception for fraud or lack of requisite service or character of discharge is found applicable).

7. If a veteran’s disability has been service connected, and the veteran was discharged or released under conditions other than dishonorable from the period of service in which the injury or disease that resulted in disability was incurred or aggravated, VA “will pay” compensation to the veteran in accordance with applicable provisions of chapter 11 of title 38, United States Code. 38 U.S.C. §§ 1110, 1131. The statutes directing payment of compensation for service-connected disability make an exception for disability that is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs, but do not make any exception for disability granted service connection erroneously. The enumeration of exclusions from the operation of a statute indicates that the statute should apply to all cases not specifically excluded. 2A Norman J. Singer, Statutes and Statutory Construction § 47:23 (6^th ed. 2000). There is no indication in this case that the veteran’s polio was a result of the veteran’s willful misconduct or substance abuse. Thus, we find no legal basis on which to deny payment of compensation if otherwise in order, in accordance with applicable provisions of chapter 11, for the veteran’s service-connected disability.

HELD:

A. Section 1159 of title 38, United States Code, and its implementing regulation, 38 C.F.R. § 3.957, protect a grant of service connection (unless the grant was based on fraud or military records clearly show that the person concerned did not have the requisite service or character of discharge) that has been in effect for ten years or longer, as computed from the effective date of the establishment of service connection. Those provisions protect even service connection errone­ously and recently granted, but with an effective date more than ten years before the date of the decision establishing service connection. The Department of Veterans Affairs (VA) may not sever such a grant of service connection (in the absence of fraud or lack of requisite service or character of discharge).

B. Sections 1110 and 1131 of title 38, United States Code, direct the payment of compensation in accordance with the provisions of chapter 11, title 38, United States Code, to a veteran with the requisite service who is disabled by a service-connected disability, unless the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. In the absence of the veteran’s own

willful misconduct or abuse of alcohol or drugs, VA must pay, in accordance with the provisions of chapter 11, compensation otherwise in order for a disability that was erroneously service connected, where service connection is protected from severance.

Tim S. McClain

Attachment (claim folder)

1 Section 3.379 provides:

If the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. If they first appear after this period, it is probable that the infection was incurred after service.

2 Former 38 U.S.C. § 359 was recodified as 38 U.S.C. § 1159. Department of Veterans Affairs Codification Act, Pub. L. No. 102‑83, § 5(a), 105 Stat. 378, 406 (1991).

3 Certain disability evaluations are protected after twenty years by 38 U.S.C. § 110 and 38 C.F.R. § 3.951(b).

  

 

[Andyman73]

I went to a several C&Ps about 10 years back, had a dr. from a particular country in SE Asia, known to all, and he was rather pleasant, and quite anti-Vet. 

Now we have a PA at my VAMC who is a Vet, and is strangely enough anti-disabled Vet.  I had him, and then wrote about him in a statement in support of claim.  One of my coworkers had him more recently and the idiot opined that his secondary back condition should not be, due to no STR entries for his back.  Duh!!! Secondary to his bilateral ankle condition!!!  I told him to write a statement and resubmit his evidence!