The following 4 paragraphs are excerpts from recent letters I've received. I've seen a recent flood of letters, all with the same focus; a reduction of the veteran's current benefit. These veterans were surprised by a “Proposal To Reduce Benefits” or a sudden scheduling of a mandatory QTC reexamination.
Jim,
“My disability is for Bronchial Asthma, which I have been rated at 100% for just shy of ten years now. Last fall I received a notice of proposed action to reduce me from 100% to 60% because my condition had 'greatly improved'.”
Jim,
“Today I received a letter from the VA for a periodically re-evaluate certain disabilities. I am rated 70% and paid 100% for TDIU almost 10 years. Can you give me a little help as to what to be prepared for?”
Jim,
“I am 100% service connected for PTSD from a sexual assault in the Navy. I have been 100% since 2005. I have the C&P exam tomorrow and I am nervous that they will take away the 100% and drop my rating. What do you think they will do. Why do I have to see them again. R they just checking up on me or what? I am going to be honest and not lie. Is it true that once you are 100% it is permanent status?”
Jim,
“In 2004 the VA gave him a 100% P&T rating saying that no future exams would be scheduled. About a year ago we got a phone call from,what is called, QTC Management, that he was scheduled for another exam.”
Answer:
Contrary to the rumor mill that most veterans get their information from, there is no "permanent" status.
Many ratings are called “permanent & total” (P&T). They aren't. If your award says that "No Future Exams Are Scheduled", it means none are scheduled for that moment in time. It does not say "No Future Exams Will Ever Be Scheduled".
In Vaspeak, the word “permanent” is used when they want to tell you that they will be investigating you according to their needs in an attempt to lower your rating. The word “Total” means that you meet some requirements to allow you to be called “Totally Disabled”. It does not mean you are incapacitated.
Any rating at any time can be questioned, investigated and a proposal to lower your rating can and does occur.
When a veteran has been rated 100% P & T for 20 consecutive years, the rating becomes “protected” in that it can only be lowered if the VA can show that it was obtained or maintained fraudulently. Thus, if you are of the tiny percentage of veterans who have been rated at the 100% level for 20 consecutive years, you may breathe a small sigh of relief. The rest of you should listen up and pay close attention.
They really dislike that 20 year 100% veteran though. More about that in a moment.
The VA is mandated by law to ensure that your rating is appropriate for your condition at any given time. In other words, if you have been treated for your condition and you have improved, the VA is likely to suggest that your rating should be lowered.
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Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
§ 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.
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Reading between the lines of that above, the phrase to notice is, “whenever VA determines there is a need to verify either the continued existence or the current severity of a disability”.
How does VA determine that there is a need to check on the severity of your disability? That's easy...they have a calendar.
Let's take a moment to inspect the glaring incongruity of the rule above and how it's applied. To read that, you would believe that VA will check up on you periodically to ensure that you're doing OK. If they discover your rated condition is worse, they'll initiate the appropriate processes to raise your rating to reflect the severity of yourcurrent condition. Conversely, if you are greatly improved, your rating may be lowered.
That seems fair, doesn't it?
If you believe that the VBA lives by either the spirit or the letter of §3.327, you may have the condition known as “Hopelessly Naive”.
VA calendars events that will have the potential to lower your rating, nothing more. If you receive IU, the “future calendar” alerts the VARO that you owe them an employment questionnaire each year until you turn 70. Fail to return the questionnaire and watch as your benefit quickly disappears. “I didn't receive a questionnaire”, you wail. Too bad, they say it was sent, it isn't their problem.
Do you have children in school, college aged or otherwise? Try to get by without sending them the required verifications. Buh-bye benefits.
Little known is the alert that pops up as you are approaching a decade of 100% benefits.
If your benefit is service connected and you're rated at 100%, for the first 10 years of your rating you should do your best to not die of any cause but the SC condition. If you do, your dependents get nothing but the brass plaque with your name misspelled on it. If, in that 10 year period, your SC condition causes your unfortunate demise, your dependents are eligible to apply for DIC.
After you've been rated at 100% SC for over 10 years, feel free to die of any cause you feel up to. Your dependents will be qualified to apply for DIC even so.
VBA doesn't like handing out SC condition benefits, we're all aware of the pain we cause them when we win. They really don't like giving it up to your dependents. To cough up a DIC benefit is the worst kind of torture at the VARO.
As you approach your 10 year date at 100%, the calendar flashes at them. Suddenly, you're scheduled for a mandatory C & P exam and the QTC examiner knows the mission goal. Any excuse, no matter how flimsy or how it flies in the face of the law, is used to reduce your rating.
As you approach the 20 year anniversary of your 100% award, things are likely to get even tougher for you. Consider Maynard Dofflemeyer. He had been service-connected at 100% from May 21, 1969, until a reduction to 10% effective May 1, 1989. Just a few days shy of that 20th anniversary. In June of 1990 the BVA upheld the VARO's decision to reduce his benefit.
As Veteran Dofflemeyer approached that 20th anniversary, a young buck at his VARO was looking for ways to ensure that good year end bonus that's handed out by VA for excellence in the workplace...reducing benefits for deserving veterans. Dofflemeyer was scheduled for a reexamination and the C & P examiner got a request to "Please expedite" the reexamination.
The C & P examiner returned a report that largely supported that the veteran was unemployable due to his condition. The record of the Court of Veterans Appeals shows, “Based solely upon this examination, the veteran's 100% rating was reduced to 10% on February 17, 1989; the reduction became effective on May 1, 1989.
If you care to read more about this horror story, click here:
Your object lessons for today are
1. Permanent isn't.
2. VA can and will do everything in their power to reduce your rating.
3. If you have any disability rating with VA, it's your responsibility to be aware of what you need to do to maintain it. If you aren't protecting yourself by taking advantage of health care, keeping appointments, taking prescribed medication and remembering the forms you owe VA, you are more likely than not going to find yourself in the same spot as Veteran Maynard Dofflemeyer.
Jim Strickland's Mailbag: Volume #45 for 2008
NOTE: Letters in my mailbag are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.
06.13.08
Question:
Jim,
Thank you for the information and assistance that you provide to veterans.
I am the wife of a disabled Vietnam veteran that is currently rated 70% for PTSD, 10% for tinnitus, and 0% for hearing loss. Unfortunately I did not find your website or information until recently. We have used service reps to assist with our claims to the VA and am now realizing that it was a mistake.
Our most recent service rep is from VVA. We recently found out that our VVA VSO rep retired, without notifying us, and we are in the middle of a DRO appeal, appealing his most recent 70% rating for PTSD. We are in the midst of trying to find and take custody of my husbands VVA file.
We just received a form letter from the VA explaining their process of determining disability ratings and asking for more evidence. I have just learned that our VVA rep sent in the appeal requesting 100% for PTSD, not unemployability. He also did not send in any information on the SS disability award that my husband received.
After reading your past articles I now understand that my husband can be rated total and permanent for IU or for the PTSD outright......I had been told by his rep that he could only be rated total and permanent for his condition, not IU.
His rep did not respond to my questions, preferring to speak only to my husband. Unfortunately, due to my husbands condition, he is not able to communicate effectively and can be easily confused.
I am needing information as to what options are open to us now. We are in the middle of the appeal and I don't want to damage the claim. I assume that I should send copies of my husbands SS disability award and my assignment as his representative payee. Is there anything that I should send with it? Is it too late to reopen consideration for IU?
Each communication that we receive from the VA increases my husbands anxiety and stress, exacerbating his symptoms. Any advice or help you could lend would be greatly appreciated.
Answer:
I'm glad you wrote. First, give your veteran my best wishes. I want him to know that we at VAWatchdog appreciate his service to our country.
Your situation is one I hear often. A Veterans Service Officer not far from you died recently. Interestingly, a veteran who had been using that office was in contact with me because his claim had been 1 ½ years at VA with no action.
Cleaning out the deceased VSO's file cabinet it was discovered he had 2 years of odds and ends including this guy's complete application he'd never bothered with. Rather than forwarding stuff to VA, he put it in his file cabinet.
VA wasn't moving quickly as they'd never seen an application from him!
There are no checks and balances in the VSO system. The VSO didn't have a boss who measured his performance. I made a joke and asked how anyone knew he'd died? It wasn't received very well. So much for my hopes of a career as a stand up comedian.
In any case, I'll have to ask a couple of questions so as to advise you best.
What is your husbands current total rating? What were you seeking by applying? When did you apply for an increase? I assume it was denied. When was it denied? In the denial letter, why was it denied? When did you ask for DRO review? Is there a personal hearing scheduled? When? When did he receive the SSDI award? Was that award based on his service connected disability?
I see no big issues here. This may cause a delay but not a loss. Knowing what little you told me I have a high confidence level that he will be appropriately rated.
Patience, patience and more patience is required. Those letters from VA are computer generated. The VA is constantly killing trees with letters that satisfy their obligation known as the "duty to assist". If they tell you "submit more evidence" that's supposed to help you. Of course what it does is cause most vets to go postal.
If you'll provide me with the above information I requested, we'll write a summary letter to the attention of the DRO and explain the situation. We'll submit an application for IU as well as documents from the SSA. We'll request, if required for favorable adjudication, a personal hearing.
Question:
Jim,
We have corresponded several times. I think I told you that after many years I had finally got IU a while back, which it took many years of trying to get the rating 70% for PTSD for military sexual assault.
It was a great DAV VSO that put all this into motion after years of struggle with the VA.
Well, I got taken off IU and put on 100% for (PTSD) which is a better benefit and we got the effective date a little earlier.
My DAV VSO thought the effective date should have been much earlier so we appealed the date and asked for a hearing. We had the hearing today and based on what he presented they are starting a new claim based on "Clear and Mistakable Error" (CUE), so we are doing this to get an earlier effective date and they are laying aside the appeal for EED until they investigate further. My DAV VSO laid out at the hearing all the laws in my favor and the records are clear that the VA should have granted my service connection much earlier.
So, at least now I have the full benefits and I am considering using the VOC Rehab. Let me know if you would like to discuss more and how I might help others with PTSD and assault issues and the VA.
Answer:
I've recently received an increasing amount of email from female victims of Military Sexual Trauma.
In any case I've decided that I need to establish some sort of network with a female MST veteran leading the way. I've known a lady veteran and victim for a while now and she has volunteered to work with me to begin a sort of loose network to see where we might go with this. I won't be in the loop except as needed for technical expertise of benefits and so on.
We've invited a select few health care and legal professionals to network with us and their responses have been positive.
Our goal is to provide information resources about MST for women by women. We have no plans for web sites or chat rooms, strictly email connections with a high degree of security, safety and privacy.
While I'll remain available as an information resource, I won't be involved in daily communications. I can be sympathetic, always, but never empathetic. I think that women are often better served by women in these areas.
There you have it. If you may know of a female MST victim, you can contact me and I'll provide the necessary contacts for you.
