Tomorrow marks twenty years since I filed for my Hepatitis C, my Agent Orange disease and an increase for my tinnitus to a compensable level. That was March 31st, 1994. I actually signed and handed it to my Tacoma AmVets representative on the 26th but it took several days to make it into the VA system. It seems like several lifetimes ago. Many of you have asked me the significance of a twenty year suspense date and some of the others VA has. Let’s look at them.
First, to put it aside, I wish to thank my AmVets rep for what he did. We never completed the claim past my November 1994 denial other than to file a NOD on December 7th, 1994. VA then dropped it until I refiled. There the claim sat in limbo for 13 years until I augered in from the inevitable effects of HCV and Interferon in 2007.
As many of you know, the Veterans Administration tired of doing battle with me after nineteen years and ten-odd months and threw in a very large towel. I assure you that I was in no way entitled to the 100% Permanent and Total rating handed down by the Appeals Management Center in December 2013 that was effective on the date of my filing in 1994. At best, I hoped to make a case under the old Diagnostic Code 7345 for 30% but was willing to settle for 20%. Likewise, I assumed I could hope for 40% for the Porphyria Cutanea Tarda due to the need for monthly phlebotomies. Combined with a 10% rating for tinnitus would have given me a VA math-adjusted 60% rating.
My surprise was thus complete when VA poohbahs granted my claim for such a munificent amount. My rainmaker was close to a heart attack and, having been a VA attorney at one time, immediately suspected a ruse or well-camouflaged punji pit. Apparently we were both wrong. As of tomorrow night at the stroke of midnight my rating is inviolate. Having attained it legally without fraud, it can never be altered, lowered or diminished in any way.
Here is 38 CFR § 3.951(b)
(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.
(Authority: 38 U.S.C. 110)
[34 FR 11970, July 16, 1969, as amended at 57 FR 10426, Mar. 26, 1992]
VAspeak differs from DickandJanespeak as we know but the only action phrase in there is “based on fraud”. Assuming you don’t cheat to get there, VA is obligated to honor their commitment. Interestingly enough, I have read BVA decisions where the VA has come back to revisit ratings of Veterans on TDIU as they approach the twenty year mark in hopes of reducing the rating. This happens more than most would believe. Nonadversarial, in the lexicon of VA, is a subjective definition and known to require an individual assessment based on each Veteran’s circumstances. And much like VA nexus letters, they all oddly come down in VA’s favor. What most generally happens is a put-up job on a C&P exam at nineteen years and some change. Let’s say your back is screwed up royally and you’re getting 60% on it. You somehow never got to TDIU and here you are on the verge of the magic twenty when suddenly you C&P doctor’s assessment reveals that Immaculate regeneration has occurred and forward flexion has increased to the point of rating you at 40%. Bingo. Most appeal and defeat this blatant attempt at screwing you but the litigation will drag out to the inevitable BVA appeal and the hope that you give up.
I have had Veterans’ spouses confuse the twenty year suspense date with 38 CFR § 3.957 which concerns Dependency and Indemnity Compensation (DIC). It also covers the eventuality that the VA may come back and rule that your dead husband (the Vet) obtained his rating via fraud or VA inadvertently granted more than they should have. If you have had it in effect for over ten years, then you are protected absent any fraud.
The law has another wrinkle that is important for potential widows. Some have gone out and purchased chest freezers with the idea that they should tuck their dead spouse in for a few years in order to reach the magic decade suspense date. This is unnecessary. If your former spouse is rated for Ischemic Heart Disease and should suddenly pass from it, you will still get your DIC. Any Vet who passes away from his diseases or injuries prior to the magic ten year date still conveys DIC to his (or her) spouse. Beware 38 CFR § 3.312 concerning cause of death and especially contributory causes. VA has been known to hang us on that codicil. Get a good autopsy from a kindred soul if there is any controversy. And for goodness’ sake, double bag them to protect against freezer burn.
You will see the reference to 38 CFR § 3.105(d) in many of these suspense date regulations. This is the CUE or Clear and Unmistakable Error regulation. It is applicable only where “an act of commission or omission” has occurred. That’s VAspeak for fraud. If you file for HCV and are granted it, and VA discovers a UCMJ record of violations which clearly show willful misconduct, you get ejected from this party. The only redeeming facet of § 3.105(d) is that it sets the same high bar for the CUE on the VA. They almost always win until you reach the Court of Veterans Appeals because, well hey, the BVA belongs to the VA Secretary. He writes the paychecks and gets what he wants regardless of whether it’s legitimate. The Court jerks the leash when they get there and forces them to perform the “manifestly change the outcome” test added in with the Russell decision in 1992. VA can’t get it through their thick skulls that the high bar of CUE they expect of us goes for them in spades as well. We see this same look of disbelief again and again year in and year out. At some point, one would think they’d “get” it.
38 CFR § 3.22 also sets some rules which are, for the most part, fairly easy to meet for DIC. It concerns itself with suspense dates of less that 10 years predicated on Permanent and Total (P&T) ratings. VA awards you a P&T rating when it is apparent that your disease or injury is not expected to improve but, to the contrary, expected to increase in severity. This is usually awarded two years or more after a finding of 100% schedular rating or a finding of TDIU which grants the equivalent of a 100% rating for compensation purposes. It may or may not require an additional C&P exam. I find a good letter from your doctor to the effect that you are not in the competition for the Boston Marathon nor will you ever be again is adequate where diseases are concerned. I’ve never dealt with PTSD or other injuries.
As you approach the twenty year mark, always be alert to the fact that VA is a vindictive and ornery taskmaster. Any perceived flaw or potential for reduction is their forte. Considering the immensity of the backlog, how they find time to reinventory our claims is amazing. What is more so is that this investigation almost always involves ones that are on the verge of gaining twenty year protection. Forewarned is forearmed.