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IU permanent after age 70? Where is this confirmed?


VN-Vet

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Posted (edited)

Good Evening All,

I have not  posted in a long while, but I trust the knowledge of the crowd here on Hadit, and especially some of you really well VA versed people.

 

My question is, where does it state - indicate, officially, that when you have been granted IU, after being 70years old or having IU when you become 70 years old, the you become P&T?

 

ptsdlawyers oom - states:

"Once the claim of TDIU is granted, many Veterans then wonder whether it’s permanent. While TDIU can be permanent, that isn’t necessarily so. If a Veteran receives TDIU, the VA may determine that their condition has improved sufficiently enough for them to sustain gainful employment. So if a Veteran receives TDIU and then becomes employed, or the VA determines that they could become employed, the TDIU benefits could be terminated. However, a Veteran may find that their TDIU is permanent if they are 70 years or older or have been receiving TDIU consecutively for 20 years."

 

statesidelegal org - states:

"Jim's Reply
This is a current topic I'm discussing with a few folks at VA. The way that a "permanent" rating is assigned at VA makes little sense. It's interesting to note that in the VA lexicon, the word permanent doesn't mean that a benefit is permanent. Rather, it means the beneficiary is eligible for some enhanced dependents benefits and that there are no routine future exams (RFEs) scheduled. Otherwise the benefit may be reviewed and modified for cause at most any time. For now it appears that you'll wait until you're 70 years old, an arbitrary age that VA uses for other similar purposes. If you're trying to avoid the future exams with a permanent rating, I'd advise you wait it out. The longer you wait, the less chance there is that your ratings can ever be lowered. If you're seeking the additional benefits for dependents, again...I advise that you wait it out. VA is aware of the issue and I'm seeing some informal positive response to making sense of the P & T confusion."

 

disabilitylawgroup com - states:

"It is also possible for initially temporary TDIU benefits to become permanent. This happens either if you are 70 years or older or you have received TDIU benefits for 20 years or more consecutively."

 

I am pretty darn sure I saw it in some form on M-21, 38 CFR, or another government source a year or more ago - just trying to ease my nerves?

 

Have a Great 4th of July weekend - be safe

Edited by VN-Vet
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1 hour ago, VN-Vet said:

My question is, where does it state - indicate, officially, that when you have been granted IU, after being 70years old or having IU when you become 70 years old, the you become P&T?

 

It may be out there somewhere, but I don't recall ever seeing it.  

There is the five-, ten- and twenty-year rule but keep in mind that with all that said: TDIU is for veterans that can’t work due to their service-connected disabilities and not for veteran that can’t find a job. Also, some veterans that are granted TDIU question if they can go back to work and keep getting TDIU benefits, but it raises the risk of them being re-evaluated, not that they will be reduced but they could be re-evaluated. In this day and age with increasingly senior veterans working, if a TDIU veteran is working and getting TDIU benefits, the VA has the authority to re-evaluate their level of disabilities. Pay close attention to the highlighted portions.

5,10, 20 Rule (hadit.com)

3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

(b) Compensation cases -

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

(c) Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

Cross Reference:

Failure to report for VA examination. See § 3.655.

eCFR :: 38 CFR 3.327 -- Reexaminations.

3.655 Failure to report for Department of Veterans Affairs examination.

(a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

(b) Original or supplemental claim or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

(c) Running award.

(1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under § 3.951(b) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later.

(3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled, and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

(4) If within 30 days of a pretermination notice issued under paragraph (c)(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in § 3.105(i)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph (c)(3) of this section shall apply.

eCFR :: 38 CFR 3.655 -- Failure to report for Department of Veterans Affairs examination.

 

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There is a good chance you are already P and T.  To find out, check your "letters" section of Ebenefits/va.gov.  

A VSO with VBMS access may also be able to tell you.  

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Posted (edited)

duplicate comment

Edited by Dustoff 11
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Posted (edited)
3 hours ago, broncovet said:

There is a good chance you are already P and T.  To find out, check your "letters" section of Ebenefits/va.gov.  

A VSO with VBMS access may also be able to tell you.  

Well that IS the probability, I have been since mid 2020, then I was called to a C&P exam, an ACE, which the out of state NP put down erroneous info on the DBQ, some may call it not being truthful.  The VA proposed to take me off of P&T, and rate me at near the lowest possible rating to be compensated. 

I requested a hearing, added more medical evidence that mirrored what was already uploaded, then they scheduled another ACE C&P, I notified the contractor that I wanted my entire file read and this time looked forward to a call, where as I didn't even get that on the earlier ACE Exam.

Apparently that was noticed somewhere up the food chain, as that exam was canceled, and a full blown C&P Exam was scheduled, in very short order.  

End result was, it appears I will continue as I was, but the Code Sheet this time has very little on it, and the decision letters. proposal, is as clear as mud. 

I feel assured that as many lawyers claim what I quoted from their websites, and there are more, like even CCK.

The reason I wanted to find the regs for this is, I like being prepared. Just when you think you are OK, the VA has another push for C&P exams, another ACE scheduled, another NP gets lazy and just makes something up, and the game is back on.

I'll keep looking and will post it here, if one of you VA Gurus doesn't beat me to it?

Thanks broncovet, you are exactly right for now; and thanks to pacmanx1 and Dustoff 11 too, for your thoughts as well..

It's somewhere, somehow.

btw - the only way I can tell the new decision is in the Code Sheet, under, 'Ancillary Decisions',  Basic Eligibility under 38 USC Ch 35, and the date back to when it began.  Not like the original decision that spelled everything out in more detail.

Back when this last ordeal began - I just said 'Nuts'......as was said in my unit many, many years ago, even before my time, and I gave them a fight. But in the end, all I needed was to have the VA actually read my file, and a fair C&P Exam. IMO - the first ACE should not have taken place. 😉

Edited by VN-Vet
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Posted (edited)

Age has nothing to do with disability claims. P&T has nothing to do with age.  P&T is determined when the raters thinnk the veterans condition will not get better. Check  your awards letters its possibe you are already P&T,  You will know if you are P&T if you were awarded chapter 38  education benefts for your spouse or chidren. It can be awarded automatically with a TDIU award or a 100% rating, But if the VA thinks you condition will improve they will not award it until they are sure the condition will not get better.  At no time is age a consideration for disability awards.  A veteran can request to be awarded P&T at any time, it can be denied for a couple of reason but it cannot be denied for age. In fact, as far as I know  they only time that age can be used against a veteran is if the veteran has been awarded adaptive housing and he applies for VA mortgage insurance based on the adapted housing. If the veteran is 70 years or older the mortgage insurance will be denied. The 20 year rule that you refered to protects your ratings unless it is determined that fraud was involved when you were rated. I  can't say for sure if P&T is protected under the 20 years rule.  I have never known of anyone to lose P&T once it is granted.

Edited by Richard1954
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Posted (edited)

Its mostly a myth that we can just look up the exact same circumstances, and find a regulation which deals with it.  This is why we have an appeal system..the outcome is decided by judges.  While its certainly a great idea to look for a regulation that deals with it, I dont have knowledge of any particular regulation that deals with your question.  

However, there may be presidential case law which would help you.  

Im not gonna search case law for you, but my suggestion is to start at the CAVC website search, using key words such as "70 years old" and or tdiu.   Trial and error will eventually hone your legal search skills, if you dont want to go to law school. 

http://m.uscourts.cavc.gov/Dockets.php 

For thoroughness, you may need to search "both" cases before 2008, and after 2008, then review those cases and see if you think they apply to your situation.  

Edited by broncovet
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