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100% total permanent rating but do i still file for ptsd and pact act

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mtcube

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hi all, vso and clinics and others keep telling me "don't poke the bear" after i was finally judged 100% by vba.  i still have ptsd and pact act claims denied, but now on appeal.  these folks say vba will go in and mess it all up and maybe i lose the 100% for no good reason but incompetence.  however, i have read that survivor benefits can be impacted if you are in a 10 year window after 100% rating unless death has a "military service" connection.  so there could be good reason to just have the two listed as service connected.  any thoughts.  second, do we veterans really have to worry about vba dropping our rating from 100%.  seems like an implied threat that if you appeal they will (knock knock) take it out on you.  thanks

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It has nothing to do with appealing, or even filing unless you file for secondary issues that are related to those you are already rated for, which will require those conditions to be looked at in context. We do not have time to pour over your entire file for every contention you have ever filed for. Unless it jumps out as an egregious error (that we are required to report or look more closely at) we generally focus on whatever it was that you filed for. 

In the case of the pending appeals, they are what they are, let them ride, it may cause you to be entitled to SMC's after the rating is finalized. If your other conditions are static (at least 5 yrs old with no changes) then they will rarely be re-examined, at least not automatically. 

VSOs and clinics say a lot of things, and the 'pro-veteran' sites that you find online- especially the ones that offer to help you file for a cut at the end- are the worst. If they keep everyone riled up they justify their existence and their page views to their respective sites. VSOs are a mixed bag, some get certified and then phone it in for the rest of eternity and don't keep up with changes or new forms and they are less help than tits on, well, most anything of the male persuasion. 

 

If you need/want to file for something, and you have evidence of it, then file. It adds to your overall rating and provides an overall pad in case some other minor rating DOES improve a bit and gets reduced someday. This idea of the 'magical 100%' is kind of a pain in the ass, because I don't know about you but id rather be healthy and paid less rather than struggle through every day with chronic pain, a depression day, or whatever. For most of us, I think, its a club we'd rather not be in. It makes me a spectator to my own life and the respective lives of my family, and it sucks. A lot. My wife and girls are big into Kpop, and concert follow various bands that come to the US for the last 2 yrs. I haven't gone on a single one. I can't fly and I barely tolerate a car ride more than an hour or two. So, they go, I sit at home and look at pictures on Instagram. 

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2 hours ago, mtcube said:

hi all, vso and clinics and others keep telling me "don't poke the bear" after i was finally judged 100% by vba.  i still have ptsd and pact act claims denied, but now on appeal.  these folks say vba will go in and mess it all up and maybe i lose the 100% for no good reason but incompetence.  however, i have read that survivor benefits can be impacted if you are in a 10 year window after 100% rating unless death has a "military service" connection.  so there could be good reason to just have the two listed as service connected.  any thoughts.  second, do we veterans really have to worry about vba dropping our rating from 100%.  seems like an implied threat that if you appeal they will (knock knock) take it out on you.  thanks

Unfortunately, we get this question all the time. 

I posted this several years ago.

 

 

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Yes.  This question has been asked repeatedly, as you pointed out because VSO's and other well meaning people often suggest, "Oh, settle for less than you deserve..or they will take it all away".  

Its blatently false.  There is no evidence "filing for an increase" would increase your chances of being reduced.  You get reduced "if you meet the criteria"...the same way you got rated..when/if you met the criteria.  

Here is the regulation that VA has to contend with to try to reduce you.  If you are P and T, or over 5 years, they have to show "actual sustatined improvement" under ordinary conditions of life.  If you read this over carefully, note that "knowledge is power":

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.

(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.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

In a nutshell part d, above means if this is a temporary rating, you dont get these protections.  

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Above 100% there are twelve SMC letter awards. Top pay is North of $10,000.00 per month. Don't fence yourself out of being awarded the higher SMC awards by not filing for disabilities beyond 100% because of fear of reduction.

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@jamescripps2 You make some good points. My current VSO is paranoid about any new claims introducing the chance that the VA can dig into anything to reduce a 100% P&T rating. I conveniently pointed out laws, regs, and m21-1 references explaining they just can't do that on a whim, despite the fact that I have evidence to prove all my issues continue to meet their current ratings, has them for 15 years, and will be 55 in a few years... Additionally, with the OIG recently reporting that the VA has been improperly reopening and improperly reducing claims, it makes me wonder if the VAROs have been reading the wrong release of M21-1... Congress needs to consider stepping in and give vets peace of mind. Living in fear of maybe being reduced actually increases stress on disabled vets, something which they need less of.

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Don't pay no attentions to kangaroos, file for everything that you feel you have coming to you. 

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