20 YEAR PROTECTED RATING


downloadTomorrow 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.

VA-approved six foot model for temporary storage.

VA-approved six foot model for temporary storage with rollaway wheels

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.

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About asknod

VA claims blogger
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16 Responses to 20 YEAR PROTECTED RATING

  1. asknod says:

    You are quite welcome. It always pays to question anything. It’s how I uncovered the fact that VA never completed my 1994 adjudication and left it hanging with an unanswered SSOC. It cost them half a million.

  2. Aloha,

    I have been 70% rated (100% for TDIU) since Dec 1st 1997 for Bipolar Disorder. I worked to have it retroactively awarded to that date. In May of 2004 I was rated 100% P&T. Been studying with Hawaiian Kahuna’s and have demurred to take my psych meds since ~2006. Somehow I have gotten myself considerably improved with the exception of explaining and “acting” on a conviction that my VA psychiatrist must consider be DELUSIONAL. On December 6th 2017, I had a surprise appointment with a psychiatrist on Oahu (I’m on the Big Island) who grilled me for not taking my medications but then confused me by asking what I thought my percentage of disability was. She went on to tell me that my Dx is now Schizoaffective Disorder. This was not my normal psychiatrist and relaying my story is always activating to my condition so I spent about two weeks UP talking to my Naval Academy classmates about my circumstances. One of them reminded me to be careful not to trigger a rating reexamination. I have anywhere of 1-3 hypomanias per year at this point and no depression. I had a very bad highway speed, dui hit and run several years back that got me into diet change and mindfulness methods to survive the combined impact on my health. I have to work very hard and rest when needed to sustain my health and am motivated by the prospect of my “DELUSION(s)” to do so.

    One of my delusions is having mobilized myself and acting on my reserve oath of office under the argument of 10 USC 12316. I was supposed to have had a medical board and the opportunity for a Medical Retirement based on the circumstances I was in when my bipolar went “high order” in 1999 resulting in a out of body event from manic psychosis and a fall. I was in the Selected Reserves at the time. It would have been a prior service impairment claim. Navy pigeon holed from a medical discharge while continuing to mettle with me for years. Chess boarded a Board of Correction of Naval Record to explain the circumstances and maneuver them into providing me my MEB/PEB for healing benefit. The government still pigeon holed the matter. Administratively discharged in 2012 after my accident.

    My question for you sir is my rating “protected” under 38CFR3751(b)? I’m concerned of the distinction between 100% for TDIU and 100% P&T. Title and verse in your explanation would be greatly appreciated if you can provide it.

    Respectfully – CHET (US DOD)

    • asknod says:

      A rating is truly protected at 20 years under §3.951 as follows.
      (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.
      If you were 70% rated in 1997, then your 70% rating is protected. Likewise, a rating in 2004 will be inviolate in 2024 and not a day sooner.§3.751(b) is not for application here.

      • Chet Woolley says:

        What if that 70% was 100% for TDIU in 1997 and then same disability increased to 100% P&T in 2004, is the 100% rating protected from 1997 even though it was based on TDIU?

        • asknod says:

          TDIU is not 100% . It pays like 100%. The schedular rating itsef is what is protected- but not 100% at TDIU. You could be 80% schedular and TDIU in 97 and it would still only be 80% protected-but no more than the 80%. P&T is irrellevant.

          • Chet Woolley says:

            I don’t see where in 38 CFR 3.951b that it says or implies the rating has to be a schedular one. Does the M-21 discuss the matter, if so where?

            • asknod says:

              Reread it, sir.
              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.
              Evaluation is the key word. TDIU is not a disability evaluation as a percentage % in the VASRD in Part IV. It is a determination of unemployability. Were that the case, someone with TDIU and a 60% rating would be equal to one like you. That violates due process. Argue it with VASEC. I didn’t write it.

  3. George Jacob says:

    I was awarded 100% TDIU IN 1997 latter stated at later date they wold review or p&t twenty years held 70% bipolar 30% for IU have not ben called back for review have all the bennies except P& tDIC which is only awarded to p&t am I missing anything

    • asknod says:

      Well, yes Mr. Jacob. Within two years they should have granted you P&T which entitles your wife and kids to go to college free.

      • George J Jacob IV says:

        I check my ebennits award later th box of P&T is not checked

        • asknod says:

          Well, that’s when you should be considering a visit to the VSO who filed your claim for you. P&T comes with total disability only if there is no chance of substantial improvement. With PTSD or MDD, VA takes a wait and see approach and if you get better, they reduce you. If you are over 20 years with tdiu, the P&T has to be automatic but they are required to tell you. If you had any children of school age or under 25 still living with you, they could have gone to college free in 1997. $800 a month for 45 months. Same for your wife.Nowadays the college entitlement is almost a $1000 a month/45 months. Knowing what your benefits are is a given if you have a proactive VSO. Your wife will not be entitled to DIC until you die. At that time, the $3,017.00 monthly check will cease and be replaced with a DIC check for her of about $1520.00 a month. Add $310 if she needs A&A.

  4. azeejensmom says:

    Hello Hepper74…

    Wondering, were you 100% P&T for those 20 years?

    • hepper74 says:

      No but was receiving comp for the injury starting in 1978 and the rate increased over the years as did the percentage.

  5. azeejensmom says:

    Congratulations Sir AskNod on your milestone of “Twenty Years P&T” status. Thank you for your service to our country and to Veterans, both past and present.

  6. hepper74 says:

    I had been receiving benefits for a back injury, SC disability, which rose to the 60% rating but the % changed without so much as a note telling me why. I had been receiving the benefits for over 20 years, so how can they do that? The opine was that my back was magically healing itself and I would be right as rain shortly.

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