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20 year protected

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After 23 years of fighting, two CUEs, five BVA decisions and three trips to the CAVC, I finally forced VA to acknowledge and fix the correct effective date ( March 1994) for my second 100% schedular rating for porphyria cutanea tarda. No more money but they can never reduce me or take away the rating. VA is fond of waiting until you're at 19 years and 6 months and then requesting a new c&p exam to show you got better. Bingo, Out goes the 100% and in comes 60%. 260% of my 290% is now 20-year protected and can never be reduced or rescinded. It was never about the money. They pissed me off forever when they said I was never in Vietnam. You can call me late for dinner but never call me a liar. 

With this last and final correction, I officially end my VA claims filing career.Well, until the next disease or injury pops up.

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  • HadIt.com Elder

Congratulations Alex

What a Relief it must be for you, Ms Tbird  recieved her 20 year date too  and I am glad for you guys not have to worry about the VA  BS anymore.

Unfortunately for most of us we have a long way to go yet , for me I have 5 years left. but if they pull the 19 years and 6 months C&P on me  I am ready to fight  just like I always have been...I took some of Ms Carlie advise and its always stuck with me.

My regret is not filing my claim 10 years sooner than I did   but pride or my denials of being disabled just kept getting in my way  until that day I could no longer work  and it was then I felt the heat to go file my claim.

Its kinda werid for me because I never knew anything about filing claims with the VA...One sunday years ago I woke up sicker then old cooty brown and in pain...I was reluctant to see a Dr  my wife went got my neighbor he is about 6.6 260 lbs and mean he told me I was going to the Dr if he had to throw me over his shoulders and take me I WAS GOING...Well I went to the Dr and they  slap my little happy but in the hospital  and I had emergency appendectomy , it rupure as soon as they took it out in the pan.

anyway this was done at the VA MC ...after 2 weeks they had several Dr's check me out before I wnet home (clear my health) and one of the Dr's was an Audiologist  that  tested my hearing  and he told me  he said did you know you show you have hard of hearing  I said well my wife and family has told me this for years...

anyway he was the Dr that had me file a claim for my hearing loss he said since I was a Vietnam Vet  I should file a claim for Noise Induced Hearing loss bilaterally.

   anyway this is why I filed my first claim..was denied of course but I kept fighting and finally was approved for S.C. only...I thought this was not right  and this is when I found out about the CFR's  anyway I kept fighting until I was approved for the TDIU P&T. and had it now for 15 years straight years & along the way I applied for other claims as well and was approved.

Now there thinking about taking my IU Away..so another battle for that is in store.  eh  a never ending battle with the VA until we all reach that 20 year Date. 

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  • Content Curator/HadIt.com Elder

Winning against the VA is a moral imperative

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  • Moderator

Congratulations, Alex!

 While I dont have 20 years, I did make 10 so that wifey can get DIC regardless of how I would die.  That is actually more important to me than the 20 year protections.

As you pointed out to me, there is a stiff "protection" for P and T'ers or those who have been rated 5 years or more.    The 5 year protection often goes unnoticed by Vet advocates, and Vets alike, as it only appears at the "end" of the regulation, its not like VA has a special heading titled, "FIVE YEAR PROTECTIONS".  

The 5 year protection is a serious one.  The VA has to show you "actually improved"  "under ordinary conditions of life", which someone has decided "ordinary conditons of life" to mean "while working".  

That is, if you are not earning Substantial Gainful Employment, it would be difficult for VA to say you "actually improved UNDER ORDINARY CONDITIONS OF LIFE".   Specifically, it says that resting does not count.  In other words if your knees are messed up, but they get better because you are off them all day and not working, then they could/would flare up as soon as you started working again.  

For me, while this is "my" interpretation, this would mean that unless I get a job and go back to work, the VA is unable to reduce my rating, as I have NOT improved, "under ordinary conditions of life".  

I dont have a current VBM..the one I have is several years old, but I imagine the VBM has to something to say about reductions for P and T'ers who have not gone back to work.  

I find it interesting that VA "hides" the 5 year protections under the category, "Stabilization of ratings".  They did a good enough job hiding them, that one Vets advocate called me a "liar", that there was "no such thing" as a 5 year (or P and T) protection of ratings.  I shall include the 5 year protection, below, along with some emphasis (mine), noting the VA put the 5 year protections at the end of the regulation, almost as an afterthought so that most Vets wont even read it, but just say, "there is no 5 year protections" in rating.  In fact, 5 year ratings OR P and T get ALL the protections mentioned in a and b, below:   

 

 
Quote

 

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. 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. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

Along this line, how would VA "prove" you "actually improved" under ordinary condtions of life, if you are not working??  It seems the burden is on them reminding you the BOD obviously favors the Vet, and this is addressed above.  If you manage to go back to work, then all bets are off, as far as "under ordinary conditons of life".  If you dont go back to work, how is the VA gonna prove you "could" go back to work?  I guess they could have one of their doctors state that you "could go back to work" you have improved that much.  Even then, would that not be speculative unless you were working???  How would they know for sure how you would react in a work environment with your disabilitie(s), unless you WERE working.  

Edited by broncovet
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I actually recently had the VA send me a proposal to reduce my rating (a rating I had held since 2008) which would also reduce my overall rating below 60% thus losing my IU PT.  I then of course freaked out, because there is absolutely zero evidence the condition had improved other than a very shitty cp exam and all of my extensive neurology records at the VA (which had been uploaded for the recent years exams into ebenefits) and actually showed my condition had worsened.  I, called my vso, who then said oh ask for a dro hearing, etc.  but meanwhile I shot off a few emails to some .va.gov addresses with what had been proposed, along with the most recent note from my neurologist copied and pasted into the body of the letter.  I received an email back from a nice lady at the VA 2 days later stating I would here from the regional office no later than 2 weeks later.  I then received a new award package from the regional office, not only did it state that they had made a "mistake" but they apologized for any stress or inconvenience this may have caused me.  They also went from not sc something to rating it at 60% and deferring 3 other items, my overall percentage went from 70-90 and I was again told that they apologize and I am still Iu PT and my dependents are eligible for chapter 35 and champva.   I say this because the rater, the reviewer and whoever else looked and my original award that went out KNEW that they were pulling a fast one and didn't give a rats behind.  Don't let them get away with this crap!!

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