Jump to content

Announcements



  • veteranscrisisline-badge-chat-1.gif

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0
Ddsr

5,10, 20 Rule

Question

The 5, 10, 20 year rules...
Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.
Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.
Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.
If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"
At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.
NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.
------
Example for 2020 using the same disability rating
1998 - Initially Service Connected @ 10%
RESULT: Service Connection Protected in 2008
RESULT: 10% Protected from reduction in 2018 (20 years)
2020 - Service Connection Increased @ 30%
RESULT: 30% is Protected from reduction in 2040 (20 years)
2022 - Service Connection Increased @ 50%
RESULT: 50% is Protected from reduction in 2042 (20 years)
-------
Second example for 2020:
Example of protected percentages:
• A Veteran gets awarded @ 30% in 1991.
• The Veteran files for an increase and is awarded 70% in 2004.
• The Veteran files for and is awarded TDIU status in 2005.
---------
RESULT: In 2001 (10 years), the condition's service connection is protected.
RESULT: In 2011 (20 years), the 30% is protected from reduction (except for fraud).
RESULT: In 2024 (20 years), the 70% is protected from reduction.
RESULT: In 2025 (20 years), the TDIU is no longer monitored yearly for income and is protected from reduction. In addition, the Veteran is automatically P&T.
For clarity on the 5 year rule: This says the VBA must have proof of sustained improvement. An example might be when a Veteran has a mental health condition yet does not go to a psychologist/psychiatrist. Or, if the Veteran never has his service connected back status noted in the current medical records. Those situations would suggest a sustained improvement because the Veteran did not seek treatment or therapy or at a minimum get a current status noted in the medical records.
  • Like 1
  • Thanks 1

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

P & T is not subject to a 20 year rating.  Depending on the type and severity of the disability, P & T can be granted at any stage of a rating. When I was granted service connection for fibromyalgia, VA also granted me P & T along with that rating.  When a veteran is granted 100% scheduler and or 100% TDIU, VA can also grant the veteran P & T. Keep in mind that (P & T) permanent total disability could be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.

  • Like 2

Share this post


Link to post
Share on other sites
  • 0

@pacmanx1 is correct. My P&T was granted five years after the effective date.

  • Like 2

Share this post


Link to post
Share on other sites
  • 0

P and T is the same as 5 years, as far as rating protections go. 

Source:  38 CFR 3.344 which states:

Quote

(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.

Note:  When you are awarded P and T, the VA is admitting that "you are unlikely to improve".  

You should always check with 38 CFR 3.344 for more information on rating protections.  While I appreciate Ddsr's "summary" of 38 CFR 3.344, it could be important to a Veteran because this regulation explains it in more detail, which I will highlight in BOLD:  (Remember, 38 CFR 3.344a and 38 CFR3.344b ONLY apply if you are P and T or have been rated 5 years or more:

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.

 

  • Like 2

Share this post


Link to post
Share on other sites
  • 0

@broncovet that is correct. My claims were stuck in appeal for over five years. When I finally won the increase to 100%, the effective date was in effect for more than five years. They followed the process correctly and granted P&T status.

  • Like 2

Share this post


Link to post
Share on other sites
  • 0

Mine was granted almost 35 years after the 1985 effective date.  Might be P & T.

  • Like 1

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


  • Similar Content

    • By georgia126532
      I submitted a requested for individual unemployability on 7/26/2020. I have 2 service connected disabilities (one at 70%, the other at 50%). I listed the 70% disability as the one making me unemployable. I attended my C&P exam on Monday, 8/10/2020 and as of yesterday, my claim was in the "Gathering of Evidence Stage." This morning my claim was in "Preparation for Decision" and it is now in "Pending Decision Approval."
      I did not submit the VA Form 21-4192 Request for Employment Information form with my claim. I called Peggy today and they said that they did not see where the VA had requested or received that form and that the VA did not need anything else to decide my claim. I know the VA will proceed with making a decision if the employer does not return the form but is it common or has anyone seen a case where the VA made a decision without even requesting the form?
    • By Dqm71
      Hello Vets
      Its been 5 years since I filed my appeal. I am still at 10% sc and I am asking for a rate increase and or TDIU.  Since my initial decision my back issues have gotten so much worse. Constant pain in low back with muscle spasms. and now I have neck issuses causing my Right arm to go numb during sleep and throughout day. 
      Opinions on my outcome 
       Anyone have similar problems or can relate to my story.   I'm on SSD for 5 yrs as well.  One month after I was granted VA comp at 10% I was awarded SS disability unable to work.  
       
    • By Ddsr
      P&T (Permanent & Total) Status
      • You can be 100% IU (Individual Unemployability or TDIU) with or without P&T status • You can be 100% schedular with or without P&T status. • You must be either 100% schedular or 100% IU to be P&T. That is what the 'T' is for (Total) • P&T=Permanent & Total which gives you no future reviews (unless you request one by filing a new compensation claim or filing for an increase) and more benefits for dependents including dependent education assistance (Chapter 35) and if not Tricare eligible, healthcare through CHAMPVA. --- If you are 100% or 100% IU and want to check...--- Some people already have Permanent & Total (P&T) and don't realize it. Log in to the va.gov website. Look under 'Records'. Click 'Download your benefit letters'. On the next screen click 'Get Your VA Benefit Letters'. Next: View Letters Select 'Benefit Summary and Service Verification Letter' To see if you are P&T, the statement will say "You are considered to be totally and permanently disabled solely due to your service-connected disabilities." --- If you are 100% schedular or 100% IU you can file for P&T status is you don't have it. There is no legal timeframe when P&T status is automatically given EXCEPT if you have been IU or 100% schedular for 20 years.
    • By Ddsr
      file:///C:/Users/dantr/Documents/VA Individual Unemployability Tips For Filling Out the VA Form 8940.pdf
    • By Punisher
      I need some guidance or suggestions from the experts.
      I am currently at 100% schedular (temporary, not P&T). My higher Service connections are:
      Dermatitis with Psoriasis (also claimed as psoriasis guttate, eczema/dermatitis)    = 60% Migraine including migraine variants - also claimed as decreased concentration    = 50% Residuals of traumatic brain injury (TBI)    = 40% Insomnia disorder - also claimed as sleep disorder and insomnia    10% and a dozen other 10% ratings for tinnitus, arthritis, degenerative disc/joint disease/lumbar spine, and as well as injuries to every joint. I submitted a PTSD claim and it was moving right along and I'd already completed all C&P exams for it as well as the ones for another set of RFE claims the VA submitted for three other conditions (Migraines, TBI, Insomnia) that are still temporary ratings.
      Now, two of the three RFE claims show as complete and the VA website says they sent a letter; however, one of the conditions (TBI) got moved over to my PTSD claim and the status went from the exams being complete and in the last phase or so, with a projected completion date sometime this month to December!  On top of that, the VA started a claim for "IU" on my behalf without asking me, so they also added the couple of VA forms required with the due date of 7/31/2020.
      The IU part might not sound bad, but I was already 100% (temporary unfortunately) without the PTSD service connection and I believe I made a compelling case for at least 50% of that, if not 70% as I met most of that criteria.  So, I've always heard, read, seen in videos, and even been told directly that when someone is at 100%, albeit temporary, it's not wise to apply for TDIU since it pays the same AND the VA may then reduce other percentages.  Also, as you know, it can be easier for them to later remove the TDIU classification for technicalities.  Lastly, those forms are the worst part for me.  I DO NOT want to have to fill those out, especially the one you have to bring to your former employer.  My company was located off-base, so they never even observed my daily performance.  The military supervisors who were over me have since moved on as it's been over a year.  Finally, I usually burned up PTO to cover all the time away for appts and physical therapy, which they knew about, but as for PTSD issues I was going through, I sure as hell did not disclose to them as it was none of their business, super private, embarrassing, and I would have been worried about my security clearance!
      The only thing about canceling the IU is that I don't want it to look like I AM capable of pursuing "gainful employment."  I would just definitely prefer to retain my 100%, which should be even stronger with a PTSD condition/connection added to my current list.
      What is your take on all this?  Do you know if there's a way that I can have them close or remove the IU portion and the required forms?  Besides not wanting to apply for that or do the forms, I also do not want this to hold the rest of my claim(s) up or give them an easier way to assign lower percentages. 
      Any help would be much appreciated.
  • Ads

  • Our picks

    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
    • This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.

      VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
        • Thanks
        • Like
      • 5 replies
    • I don’t say thank you enough to all of you...
      You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.

      Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.

      You all made that possible. Thank you.
        • Like
      • 3 replies
    • Help HadIt.com stay online buy a subscription
      If you can afford it and want to help hadit.com consider buying a subscription this gives you as free viewing of the site and allows me to budget in subscription payments.
       

      You can try it for 1 month for $5 or get a monthly subscription or a yearly subscription.

      Subscribe here https://community.hadit.com/subscriptions/
      • 4 replies
    • VA has a special where we can ask questions TODAY, at 3:00 to "people that matter?"  Someone should ask why we can not ask them questions EVERY day, why today only? (This is a big problem with VA..the 800 number often does not give specific answers).  We should have people in VA who "solve Vets problems" like Allison Hickey did a few years ago. 
        • Like
      • 8 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines