Jump to content
Using an Ad Blocker? Consider adding HadIt.com as an exception. Hadit.com is funded through advertising, ad free memberships, contributions and out of pocket. ×
  • 0

Reduced TDIU Restored


pacmanx1

Question

 

However, it is unclear how the RO reached the determination that the Veteran's service-connected disabilities precluded her from obtaining and maintaining substantially gainful employment.  In this respect, there was no medical opinion of record suggesting that the Veteran was unemployable due to service-connected disability and evidence, as cited above, that indicates the Veteran was unemployed to spend more time with her family.

 

 

The reduction in the award of TDIU effective June 1, 2006, was improper; restoration of the TDIU rating is granted.

 https://www.va.gov/vetapp10/files6/1041384.txt

 

 

 

  • Like 1
Link to comment
Share on other sites

Recommended Posts

  • 0
  • HadIt.com Elder

While I like reading these, and using the info to work my claims, I don't like that there is no way to link to a newer (if any) decision regards to what happened.

In this case, it looks like the Veteran had the TDIU reinstated and recovered her benifits from '06 to 2010, but what did the rater do after that?  The board gave the rater a couple options.  Where any persued?

Or did just leave the Veteran alone.

Carl

 

 

  • Like 1
Link to comment
Share on other sites

  • 0
  • Moderator

This is still another regulation cited, explaining (the difficulties) the VA has in reducing 100 percent P and T or TDIU.  

Here it is:

Quote

38 CFR § 3.343 - Continuance of total disability ratings.

prev | next
§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

(b) Tuberculosis; compensation. In service-connected cases, evaluations for active or inactive tuberculosis will be governed by the Schedule for Rating Disabilities (part 4 of this chapter). Where in the opinion of the rating board the veteran at the expiration of the period during which a total rating is provided will not be able to maintain inactivity of the disease process under the ordinary conditions of life, the case will be submitted under § 3.321.

(c) Individual unemployability.

(1) In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. When in such a case the veteran is undergoing vocational rehabilitation, education or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her, or unless the physical or mental demands of the course are obviously incompatible with total disability. Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718 shall be considered evidence of employability.

(Authority: 38 U.S.C. 1718(f))

(2) If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occuption during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.

(Authority: 38 U.S.C. 1163(a))
 

Also, for application to protect the Veterans ratings are here:

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

 

  • Like 1
Link to comment
Share on other sites

  • 0

Yes some will say the VA will Never reduce unless they have evidence.

There are many cases were the veteran is fighting to get there rating back.

1 hour ago, broncovet said:

38 CFR § 3.343 - Continuance of total disability ratings

Yes this is the law. But we all no it will be a fight to get the VA to follow it.

My advice is you have 100% let it stand until you Are protected.

Before you go back trying to get something else rated.

This my opinion an the way I see the new system.

Because I apply for smc benfits I got my record there are over 5 request to reduce my rating in the record.

Each time they are told I am 25 year protected.

I got a bva judge remand after the court we're the judge stated on the remand my condition improve. To order exams. To play there games

25 years and my condition improve. Smh

See these are things to order new exams in there new system.

You will get reduce before you even get a copy of the comp exam results.

To see what is going on.

Now you are fight for your rating back.

An the case you posted is the perfect example.

You really have to think a Head with the VA there are a lot of little games.

 

Link to comment
Share on other sites

  • 0
29 minutes ago, Mr cue said:

My advice is you have 100% let it stand until you Are protected.

This is your opinion, and, in my opinion, I think this is still wrong. The OP (original post) was/is to show that the VA can propose a reduction at any time or reduce the veteran’s rating at any time, but the veteran can still appeal and win his/her benefits. I have been rated 100% scheduler P & T for well over a decade and the VA has never addressed the reduction of my current rating. While still in the appeal status, the VA has tried to reduce one of my pending ratings, but the BVA also corrected them and forced them to restore my increased rating. Once again just because the VA tried to reduce your rating it does not in any way prove that they would do every claim the exact same way.

As we have posted many times there are rules and regulations on reductions. 

  • Like 1
Link to comment
Share on other sites

  • 0

Well I feel alit of veterans like my self can't loss there income.

To have to fight years to get it back because of these bogus rating reductions.

It any like if they di a rating reduction it will change back in a few weeks.

It could be years. So no I feel if you have a 100% rating at this present time it is better to just relax with your rating.

So might feel take your chances and hope the VA does the right thing.

I am not one of them

Link to comment
Share on other sites

  • 0
Posted (edited)

Our opinions are different because our experiences are different. You chose to wait for your claim to be protected before applying for new benefits but in my case, I was granted/awarded 100% scheduler and I had multiple claims on appeal. The VA contacted me several times about withdrawing my appeals since I was rated 100% but I informed them that I wanted my appeals to be processed. After being awarded 100%, I have had several ratings increased within my combined 100% rating and I recently had one claim outside of my 100% rating granted. This new rating is not included in my combined 100% rating, and I was awarded service connection. This simply means that the VA had to pay my complete retro from this particular disability. The rating awarded me an EED long before the VA granted/awarded my 100% rating, and it is still pending.

By telling veterans to wait for their rating to become protected is wrong because no one knows what tomorrow has in stored for them and they may not live that long.  In my particular case, I am just trying to get the benefits that I feel should have been granted for an EED. By waiting for your rating to become protected adds years to your claim and there are no guarantees that the VA would reevaluate their decision. Pending claims have more of a benefit of doubt.

P.S. IMHO (IN MY HUMBLE OPINION) the VA is trying to move/get around paying retro pay. A lot of the new forms and new regulations say the veteran must file a disagreement within one year of the decision or the date of the recently decided claim.

Edited by pacmanx1
Link to comment
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.

  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • How to get your questions answered...

    question-001.jpeg

    All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.
    2. Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.
    3. Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.

    Leading to:

    Post clear questions and then give background info on them.

    Examples:

    • A. I was previously denied for apnea – Should I refile a claim?
      • was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?
    • B. I may have PTSD- how can I be sure?
      • I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?

    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

    Note:

    Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

    This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.

  • 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

×
×
  • Create New...

Important Information

{terms] and Guidelines