100% ratings - there is no such thing as a protected rating

listen this page Listen the this Page
Posted on: Tuesday, November 20, 2012
Printer-friendly versionPrinter-friendly version

Dear Jim,

Saw your website and appreciate your helping Veterans. I have two issues on the same case.

1) I was rated 100 percent disabled for Rheumatoid Arthritis in 1999 and now under my first review feel they are trying to lower it based on recall exams etc. I saw a comment two places on internet. linked below which leads me to believe a supposed protected status applies to me :Since i have not worked or applied for work in over 9 years, it appears i cannot be observed "under ordinary live conditions...at work or seeking" and thus they cannot lower my 100 percent rating.

Could I get your opinion and an official reference link for that us code number or something. t. Also, does that mean they have to leave it at 100 percent or does that mean they can actually lower it to something like 60 but must allow me to use that waiver sheet i sign that says i have no income and give me the unemployable 100.

Also, does that protection apply to a 100 percent rating, mine, or is there another nomenclature like "permant" or "unemployable" that had to be on the original 100 percent assignment i was given.

The second type of “protected rating” is a “100% disability rating”. In order for the VA to properly reduce a total 100% disability rating, it has to schedule an exam, and the exam must find that there has been “material improvement” in the disability AND ”material improvement” under the ordinary conditions of life, while working or actively seeking work. In other words, the VA must review the entire history of the condition, compare the past and current symptomatology, and consider the veteran’s entire work history under the past and current symptomatology before it can conclude that there has been a “material improvement”. One error that the VA commonly makes is to reduce a 100% rating simply because the VA re-exam determines that the Veteran’s current symptoms match a lower rating in the Impairment Tables and Diagnostic Code’s Schedule of Ratings. Most veterans don’t realize this – and assume the VA is correct.

Question 2.

Rheumatoid arthritis is extrmely similar to SLE (lupus), both are the immune system attacking the body and about 3 years after the Rheumatoid rating the VA docs have have said I had lupus for about 8 years, but then the past year or two said perhaps not Lupus. So, its up in the air as to what different rheumatologists might say i have. Also, fyi there is crossover in the diseases where basically people have some of both etc. My question, if question one protects me, what can i use to argue the they cannot try to swith it to just lupus and rate me low from scratch in lupus, but have to still consider the Rheumatoid diagnosis and leave it at 100 due to non ovservation under "ordinary conditions".

thanks you for your help and all your help to others.

Reply:

Your questions are relevant and frequently asked. The system is very complex and this all can be difficult to get your head around.

We'll only be talking of 100% ratings today. A 100% rating may be schedular or TDIU. There is no difference between those 2 ratings of 100% other than the path to get there and that the TDIU rated veteran is not allowed to participate in gainful employment. Gainful employment may be loosely defined as a traditional full time job.

There is no such thing as a protected rating. VA does use the term but includes a qualifier. A 100% permanent & total rating becomes "protected" after the veteran has held that rating uninterrupted for 20 years. Once the veteran has reached that point, the rating may still be modified if VA believes that fraud occurred at any point in time.

A rating is temporary unless the veteran is informed otherwise. The VA does not notify the veteran by use the word permanent or temporary. In the original award letter, VA uses an arcane code that tells the vet that "future examinations are scheduled" or that "future exams are not scheduled". If a future exam is scheduled, the rating is temporary, if there is no future exam scheduled, the rating is said to be permanent. The award letter may not say either of those things and may tell the veteran that "dependents are authorized to apply for Chapter 35 DEA benefits" or a similar reference that indicates eligibility for DEA benefits. That phrase indicates that the rating is permanent.

The word permanent is a misnomer when used by VA. There is no permanent and total at VA. The VA may at any time, for any reason, request that the veteran be examined and VA may then propose to lower the rating. The use of the words permanent and total by VA is only to signify that a veteran may or may not be eligible for a level of benefits for his/her dependents. In the VA lexicon, P & T does not mean P & T.

The veteran has no right to refuse such an examination when it is ordered. Not appearing for a scheduled examination is sufficient cause for VA to modify the benefit. Common reasons for this are that VA believes that a TDIU veteran may be participating in gainful employment or that a veterans condition has measurably improved. If the original award was temporary, the C & P exam may occur within a period of a few months or if forgotten about and then discovered by VA, the exam can occur years later.

That your original rating was in 1999 makes me think that you may have been awarded a temporary rating. Have a look at the award letter to find the phrase about "future exams are scheduled". If you find that phrase, it tells me that you should have been scheduled for a C & P exam within a year or two of the original award. VA does a poor job of using the veterans "future calendar" to mark such events and many vets don't receive the required exam until years later.

I'll hazard a guess that this is happening to you. This is a very frequent occurrence as the VA muddles through its daily tasks.

What happened is that someone stumbled across your record and saw that in 1999 your 100% rating was awarded as a temporary rating. Your award letter probably says that a future exam is scheduled. Then the ball was dropped and no exam was scheduled.

Now you have no alternative but to attend the examination. There is no reliable way to protest at this point. Once you have been examined in the C & P exam process, that examiners report will be delivered to your VA regional office. A "rater" will review your records along with the new C & P exam and decide if you will be continued at the current 100% or if there will be a proposal to lower your rating.

Until you get through this process and until you receive the letter, you shouldn't do anything. Preemptive actions at this point won't accomplish anything. VA will inform you that you can't protest or appeal an action that hasn't yet happened. You must wait for the process to complete before you know what to do.

Once you get the decision letter, then you may act. If the letter continues you at the current 100% rating, there's nothing to do other than to consider whether the VA got it right this time and scheduled you as permanently disabled. If the letter indicates that VA proposes to lower your rating, then you must formally appeal.

If you have been rated at a temporary 100% since 1999, you've lost a lot of time in grade. You've also missed dependents benefits that would have been available to you if your rating had been awarded as permanent. VA won't do anything about that. There is no way to recover any missed benefit because of this error by VA.

An alternative is that although you may have a "permanent" rating, VA has now questioned the status of your condition. Your question about lupus v. RA is one I see often. If the VA decision is not favorable to you, you must consider an IME. Please see http://www.vawatchdog.org/imo-ime-medical-opinions-exams.html

You ask "Also, does that mean they have to leave it at 100 percent or does that mean they can actually lower it to something like 60 but must allow me to use that waiver sheet i sign that says i have no income and give me the unemployable 100."

There is no such thing as a waiver sheet. The TDIU benefit must be applied for and adjudicated just as any other claim. http://www.vawatchdog.org/tdiu-unemployability.html

If you'd like further information, dig out your original award letter and I'll be happy to have a look. You may fax it to me.

Complete Mailbag

Comments

Submitted by Pete Aguirre on Sun, 2013-01-06 15:47

Just found this website, glad to hear some out there is on the side of the veteran. Thank you for being there.

Submitted by CLG6 on Thu, 2013-02-21 17:31

Thank you Jim for this excellent resource… I've discovered it while searching for answers to the Marginal Employment/Substantially Gainful Employment when receiving TDIU… a pain in the rump effort.

What I found is this: The Federal Government has one set of definitions and the VA has another more restrictive set.

Basically, if you can consistently think, talk; interact with others you are deemed as having "ability" to acquire "Substantially Gainful" employment. This would be fine if I was 30 years of age or younger. But being 60 plus years old makes the likelihood of full time employment negligible at best, especially since my employment record is dismal since 1988.

If you look up: VBM54 Definition of Substantially Gainful and scroll to page 305 and review "Advocacy Tips" you will have a very direct mandate from the VA policy makers.

The key section states:

If the veteran is filing a TDIU claim because of physical disability, then the VA may consider whether the exertion-al activities performed by the veteran on the job, such as sitting, standing, walking, pushing, pulling, using hands, reaching, lifting and carrying, demonstrate that the veteran has the ability to engage in substantial gainful employment. If the veteran suffers from a mental disability, the VA may consider whether the non-exertion-al activities performed by the veteran, such as communicating, remembering, following instructions, using judgment, adapting to changes and dealing with people, including supervisors, co-workers, and the public, demonstrate that the veteran has the ability to engage in substantial gainful employment.

Well this covers every job in existence... Who pays people to be "not quite there?" So the VA does not allow marginal employment. Period! They need to spell this out.

TDIU = NO Employment.

CLG6

Submitted by Franklintr on Mon, 2014-04-07 14:55

Is there any reliable assistance for 100% DAV who have issues with owing the IRS due to audits, appeals and disputes?

Submitted by admin2 on Mon, 2014-04-07 15:59

Many legal aid programs have special low-income taxpayer clinics that will help with disputes with the IRS.
http://www.irs.gov/Advocate/Low-Income-Taxpayer-Clinics/Low-Income-Taxpayer-Clinic-Income-Eligibility-Guidelines
http://www.irs.gov/Advocate/Low-Income-Taxpayer-Clinics/Low-Income-Taxpayer-Clinic-Map

If you do not fit within these income guidelines, look on our Find Local Help map http://statesidelegal.org/statesidemap for another program in your area that specializes in pro bono legal help for veterans.

Another useful link on our site: http://statesidelegal.org/irs-debt-options-low-income-taxpayers-0