5,10, 20 Rule

[Ddsr]

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.

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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)

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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.

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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.

[pacmanx1]

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.

[Vync]

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

[broncovet]

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.

 

[Vync]

@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.

[Lemuel]

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

[pacmanx1]

1 hour ago, Lemuel said:

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

Congratulations!

[Buck52]

After you completed 20 years on your s.c. condition at 100 do you get a letter from VA or anything letting you know your service connected condition/disability is  now protected from any and all exams and you keep it the rest of your life...even if your condition is Mental Health  (PTSD/MDD)

 

I had a 50% rating in April 4th 2000  so my 20 years would be April 4th of this year (2020) on the 50%, but on May 7th  2003 I was increase to 100%IU. P&T  So I need to wait until May 7th 2023? for the other 50%  totally 100% rating.

Edited August 1, 2020 by Buck52 (see edit history)

[Lemuel]

Wish I could answer.  All I know is the counselor at the VA told me I was permanent and total after the TDIU 2009 rating until it was granted back to 1985.  I think they did that because I was past 70 by May 11, 2017.  It would have been only 8 years for me.  And I have never seen a letter so he could have been wrong although he did look up my screen to answer the question.

It seems to me the time limits were much shorter in the 1980s and 1990s before those 2 conditions the VA fights tooth and nail against became so dominant.  PTSD and TBI.

Edited August 1, 2020 by Lemuel
left out important part (see edit history)

[Holllie Greene]

Thank you Ddsr, this is very helpful, I am putting together a file to help my beloved husband should I predecease him.  He knows the local VSR but as we all know: best to do our homework and not rely solely on the VSR.

Multiple sclerosis (MS) has no cure...but they have medicine to "help" with the symptoms.  It is classified as a medical mystery disease.

I am P & T---15 years.

Anyway, the info will be going into the file for my hubby, thank you again.

H

[jfrei]

My effectiveness on my dates are less then sub par as I suck at understanding my effective dates and always have a panic attack of them going away I was awarded IU PT back in Nov 2016. And then instead of seperation of my ptsd it was lumped in with my tbi shortly after raising my rating for my tbi from 2010 from 70 fri to 100 And still keeping my P and T on my rating. So since my tbi was at 70 since 2010 is that protected from dropping below that of when they lumped it with ptsd in 2018 I have to wait to 2028 for no more fear? Last question my P and T was granted in 2016 is that protected ever the fear of my family losing ChampVA has always been my fear? This COVID has my anxiety blasted I’m on Medicare from SS is secondary to my VA care so I’m taken care of. Anyone know what the hell the new dates on the VA effective dates mean ?

100%residuals of traumatic brain injury with cognitive disorder, short term memory losses/lapses, difficulty sleeping, problem solving with PTSD (to include cerebral contusion with diffuse axonal injury to bilateral frontal and temporal lobes)

Service-connected disability? Yes

Effective date:31/03/49306

Edited August 10, 2020 by jfrei (see edit history)

[pacmanx1]

59 minutes ago, jfrei said:

Service-connected disability? Yes

Effective date:31/03/49306

First things first, you can take a big deep breath and relax. The above quote is not an effective date. Now due to the fact that you are P % T, VA is not going to reduce your rating. You are not going to lose your CH 35 benefits. Look at it this way, once VA make a rating decision the protection time begins. Again it really doesn't matter in your case because your disability is considered P & T.

[Lemuel]

On 8/1/2020 at 11:26 AM, Buck52 said:

After you completed 20 years on your s.c. condition at 100 do you get a letter from VA or anything letting you know your service connected condition/disability is  now protected from any and all exams and you keep it the rest of your life...even if your condition is Mental Health  (PTSD/MDD)

 

I had a 50% rating in April 4th 2000  so my 20 years would be April 4th of this year (2020) on the 50%, but on May 7th  2003 I was increase to 100%IU. P&T  So I need to wait until May 7th 2023? for the other 50%  totally 100% rating.

I remember seeing in a rating decision letter, the remark, rating could not be reduced because of time limit.  But it was a long time ago and I think the rule was 3 years then though only for hearing because of a court decision.  I suspect if you look at any recent rating decisions there may be a remark but I don't think they issue a letter specifically for that.

 

[Buck52]

Roger That.

[jfrei]

Roger just hate the feeling They can if they wanted take my family’s rights away

[pacmanx1]

Just keep in mind that it is not easy for VA to reduce a veterans' rating.  VA has to prove a veterans' symptoms has improved.

[Buck52]

Well  what a Relief  it will be when I get my 20 year rule  in, 2 more years for me. I have the 20 year rule in on 50% but not the other half.

Ms Tbird got her 20 years in couple years ago and she mention what a relief it was.

According to Alex Graham (asknod) he mention he was helping a veteran with 19 years and 8/9 months in , he got sent s proposal to reduce his benefits with just a few months to go on his 20 years.

as for as I know this Veteran is in Appeals with Alex Representing him.

Ain't that a crying damn shame.

[Vync]

1 hour ago, Buck52 said:

According to Alex Graham (asknod) he mention he was helping a veteran with 19 years and 8/9 months in , he got sent s proposal to reduce his benefits with just a few months to go on his 20 years.

as for as I know this Veteran is in Appeals with Alex Representing him.

Ain't that a crying damn shame.

I assume he would try to run the clock out as much as possible. For example, he could wait until the last few days of the response window before submitting the response via mail/fax/online. That would narrow the time the VA has to make a decision.

I don't know if it is possible, but could requesting a copy of his claims folder and then simultaneously requesting an extension in the time to respond push the response clock out?

 

[GBArmy]

It also begs the question that if the delaying action should push the hearing past the magic 20 years, the VA would have to void the action right?

[Buck52]

Yes I agree with both of you guys  but knowing how the VA is they would more than likely come up with some of their own rules or make them up as they go.

but yes this should work and if the delay works then as GB mention VA would need to withdraw the proposal.

in my opinion I think it sucks VA doing this  they got to know this veteran is close and to have a service connection for 19 years and 9 months reduced ...well the veteran deserves to keep his comp  and the VA RATERS /DRO /JUDGES  ALL DECISION MAKERS KNOWS THIS.

So why send the proposal in the first place?  grrrrrrr

ALL MEMBERS HERE SHOULD READ THE LATE CARLIE CASH LETTER TO THE VA SECTARY   ABOUT HER  REQUESTING A C&P EXAM BE CANCELED.

IT'S VERY INTERESTING READ  AND THE VA DID CANCEL THE EXAM.

HER LETTER IS IN THE HADIT ARCHIVES  CARLIE CASH POSTINGS.

 

 

[Vync]

@Buck52 I remember when that happened to Carlie