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TDIU......How does the 5,10,20 year or over 55 work?

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qwiksting

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Good afternoon, I have a question, and I have searched, but maybe I am missing something.  I was granted 10%, 04/01 for my hand.  I was granted 70%, ptsd/anxiety and 10%, tinnitus on 03/05. I was granted 0% for my digestive system 08/13, EED 08/08. I was granted TDIU P&T 09/13.  Can someone who understands this rule, tell me how TDIU works in relation to this rule. I am past the 5 year threshold and coming up on 10 years in September. I am over 55 as well.  I really have been thinking of looking at increasing my Gastro claim as I feel cheated! I had/have binders of evidence and symptoms. I have to pay for co pays for my meds for this, (granted, it is not a whole lot, just the principal) because it is not on the VA formulary, and Tricare requires a co pay because it is not a generic. I also have been thinking of the pact act (Iraq 04). I have breathing and lung issues that my Pulmonologist has attributed to Asbestos and military service.

I guess, what I am asking, at what point can I file for an increase and or new claim....without worry ?   Or, is it just not worth the hassle?

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First things first, you are rated TDIU P & T. That means the VA has adjudicated your claims to be most likely last for the rest of your life, so you should have no fear in losing your benefits. Second, if you get your medication from the VAMC they should all be free. You just have to start going to the VAMC clinic.

As for filing for an increase, a veteran can file for an increase at any time. As to the 5, 10, and 20 year rule, they all kick in 5, 10, and 20 years after your effective date. As stated above due to the fact that your records have been adjudicated and rated as being TDIU P & T. It is not likely the VA would try to reduce your ratings.

 

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I do go to the VAMC and get meds through the mail from them,however the meds that work are not generic, they are name brand. VAMC does not carry it, won't order it. I have tried..over and over. Even went to the military hospital pharmacy, and it is the same. Generic only.  

Thanks for your reply BTW, I was wondering if the TDIU date is protected at 10 years, or TDIU doesn't fall under these rules, or can't be severed. Maybe I am thinking about the 20 year rule. I know what your saying about P&T, but I have a very hard time trusting the VA after what I have been through with them.

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I recommend you worry about something ELSE more likely to happen, than have your 100 percent P and T benefits (TDIU) reduced for applying for an increase.  Oh, I dont know...you could worry about inflation (real concern), a war with Russia or China, an asteroid, or something else of your choosing.  Will Rogers said that "Worry is like paying a bill that may never be due".  

However, if it will help, here is my quick summary of the "rating protections" you mentioned.  

1.  5 year (or permanent and total).  You can read "parts a and b" both of which apply to you.

https://www.law.cornell.edu/cfr/text/38/3.344.  In a nutshell you cant be reduced "unless you have actual improvement under ordinary conditions of life", and this improvement needs to be sustained..(on going).  If you are not working, well I guess you did not improve enough to work, right?  

2.  10 year.  This is for SEVERANCE of service connection 

https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFRb3a446cfa51526c/section-3.957. or, if in voc rehab, here:  https://www.law.cornell.edu/cfr/text/38/21.48

3. 20 year.  You cant be reduced except for fraud:  https://www.law.cornell.edu/cfr/text/38/3.951

    In short, you have most of the protections in place and need not worry unless you have "actually improved" and gone back to work.  

 

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Oh, and the 55 year rule regards "calling you in for a re exam" (for reduction purposes).  They are not supposed to do that beyond age 55 unless there is a compelling reason.  

For the over 55 rule reference, read this:

https://www.seankendalllaw.net/faqs/the-55-year-rule-for-va-disability-ratings.cfm#:~:text=Once you turn 55%2C you,called the 55-year rule.

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Correct, Vync.  For quick reading, here is the part of the "over 55" rule:

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IV.ii.1.A.1.d.  When Not to Schedule Review Examinations

 
Do not establish a future examination control in cases when
  • the disability is static, without material improvement over five years
  • the disability is permanent in character and of such nature that there is no likelihood of improvement
  • the Veteran is over 55 years of age (except under unusual circumstances or where required by regulation)
  • the evaluation is the prescribed schedular minimum within its DC
  • the evaluation is 10 percent or less, or
  • the combined evaluation would not change even if the reexamination resulted in a reduced evaluation for one or more disabilities.

I guess you all see the VA "copout" ..."except under unusual circumstances"....this language is problematic.  Remember, VA says, "every claim is different", so that would mean "ALL" of them are unusual, because no 2 are alike!!!  

This said, the late hadit member "CARlie" reported she was called to report for (a rexam).  She apparently made some phone calls and the re exam was cancelled by VA.  Im not sure what she told them, except to cite this regulation where VA isnt supposed to do this.  

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