How temporary 100% disability is reviewed

Posted on: Tuesday, January 24, 2012
How temporary 100% disability is reviewed

Jim,

I think your are Awsome writer! I like the way you tell it like it is ! My question is ; I was recently awarded 100% IU, in my award letter, it says that they would like to set up a future exam to determine if there is any improvement to my disabilities. How soon do you think I could expect such an exam? I was awarded on Dec.1 2011. Thanks you very much for the info!

Reply:

Thanks for your kind words. I'm not sure about "awesome" but I do try to make my point even though some may not like what they hear.

The Total Disability, Individual Unemployability (TDIU) rating you've received is temporary, not permanent. That happens when VA anticipates that there is an opportunity for improvement in the condition.

VA routinely assigns a temporary 100% rating (usually schedular but sometimes TDIU) for conditions like prostate cancer. It's assumed that the veteran with prostate cancer will have a treatment to remove the cancer. Once that happens, he can't be rated for having a cancer and he's reexamined to determine what a more permanent rating will be.

Younger veterans (under age 55) are also likely to receive temporary ratings. The philosophy being that a young veteran is more likely to improve the status of many conditions. The mental health category of conditions often receives temporary 100% ratings because it's thought that intensive treatment plus some time is likely to bring about improvement.

There is a function called the "future calendar" that each disabled vet is assigned. In that calendar is a reminder to the VA Regional Office that the veteran who is awarded a temporary 100% rating must have a C & P exam at a future date.

Depending on the disabling condition, those repeat C & P exams are scheduled from 6 to 18 months ahead.

A problem arises when the VA Regional Office doesn't properly use the Future Calendar. This is a frequent mistake at every VA Regional Office. The veteran with prostate cancer, for example, should be scheduled for reexam about 6 months after he has a definitive treatment such as surgery and/or radiation therapy. I often hear from veterans who have expected to be reexamined and 2 or 3 years have passed with no notice from their VA Regional Office.

The oversight costs VA a lot of money. If the vet is paid the 100% rate for a year or two because of their error, there is no way for VA to recoup the money.

There are cases that are on the record of VA completely forgetting reexaminations for some veterans and they receive their 100% benefit for many years. When VA discovers the error, the benefit may fall to a very low rate and then the fight starts.

Mental health conditions may be reexamined every 18 months or so.

This topic can get complex. The VA office of General Council issued a memo in 2005 to address it, click here to read it www.va.gov/ogc/docs/2005/PREC52005.doc

The temporary 100% rating does not allow some of the benefits that come with a permanent 100% rating. These include eligibility for dependents CHAMPVA and Chapter 35 DEA benefits.

If you feel that your 100% rating should be permanent in nature, you have the right to appeal. Vets should use caution and give some thought to seeking a permanent rating. The VA often replies that rather than awarding a permanent rating that they propose to reduce the existing rating drastically. I've worked with many vets who have a 100% rating that is suddenly proposed to be rated at 30% or even lower.

Complete Mailbag

Comments

Submitted by rogrut1968 on Sat, 2015-07-18 12:45

Hi Jim..I'm 100% since Feb 2014..prostate cancer. MRI Feb 2015 shows no signs of increase beyond prostate. Every 3 month PSAs show no trend up. Even if they did...I'm 65 and am determined not to have to wear diapers and research I've been reading indicates watchful waiting for someone like me with non-agressive symptoms.

I recently was layed off from my job..RIF'ed...Can't sayit had something to do with my telling my company of my disease and need for medical time off to go for PSAs..cat scans and MRIs...but..in any case..at my age with this condition..I'm not likely to find employment. My question is...can I be considered for 100% PT this early..It would mean a lot to my now uninsured wife to have CHAMPUS..I have VA..but she has nothing.

Submitted by Jim Strickland on Thu, 2015-07-23 15:46

Reply:

The VA will not consider your prostate cancer as permanent and total for purposes of rating.

As in all service connected cancers, the VA rules and regs were written with the belief that everyone would choose treatment to "cure"
any cancer. Thus, all cancer ratings are temporary and there isn't any regulatory path to rate a cancer as P & T.

The trend towards "watchful waiting" as a way of treating (or not treating) prostate cancer is relatively new on the scene. In the past prostate cancer has mostly been aggressively treated by radical surgery and radiation therapy. Many studies over the years since have demonstrated that those radical treatments make very little difference in the numbers of us who die from prostate cancer.

But as usual, the VA is years behind in recognizing the modern trends of treatment of prostate cancer. Many men are choosing watchful waiting and that confuses the VA regulations. Far too many veterans who choose watchful waiting are called in for the "future exam" and VA will try to lower their rating based on some obscure treatment. The alleged treatment may be as simple as the vet taking medicine for prostate enlargement that has nothing to do with the cancer.

The best you'll be able to do is to continue to maintain the temporary 100% rating for the rest of your life. It's doubtful that the law will change any time soon.

Jim

Submitted by Brotex on Fri, 2016-03-25 16:44

I had a 100% rating for brain injury/major depressive disorder, 20% neck, 40% spine (for almost 10 years), after C&P the 100% was reduced to 70% for a combined 90%. VA examiner checked "No TBI" now claim it's PTSD. My disabilities caused by being struck in the head and knocked out by the gun cannon of a main battle tank well documented by CO, ER Doctors & Federal Police reports. VA also sent me form for Unemployability. DAV made a "personal appeal" for me. My question is can I appeal the reduction and file for unemployability at the same time? Should I simply settle for the unemployability, at least they won't be hounding me with C&Ps all the time. My VA shrink won't write a letter for me supporting the 100% because "It would be a conflict of interests." I'm not very confident with DAV representative, should I get a lawyer? Thanks!

Submitted by jhaycock@ptla.org on Wed, 2016-03-30 09:45

Thank you for commenting! Here's Jim's response:

Yes, you need an expert veterans law attorney. Please click https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html

If you'll read that page you'll learn how veterans law attorneys go about the business of representing a veteran. Any of the attorneys you see featured on that page will be happy to speak with you and review your claim/appeal for free. Good luck!

-Jim

Submitted by lwramsey@verizon.net on Sat, 2016-03-26 10:30

Jim,

I am a 66 year old Vietnam vet (served in country from Jan. 1970 through Dec. 1970). In Dec. 1999, I was diagnosed with prostate cancer. My only treatment was a radical prostatectomy. I lost all my ability for natural erections. However, with injections I can achieve an erection and penetration. I don't have much leakage and do not wear pads. I do have a urination frequency issue. I have to void at least 4 time every night. I see my urologist once per year and my PSA reading has remained about zero.

I have been taking medication for high blood pressure and high cholesterol for several years. As part of my annual physical last year, I was diagnosed with a heart condition. My EKG indicated I might have had a heart attack sometime in the past. My primary care doctor sent me to a heart specialist. After a failed stress test, I had a heart catheterization which found severe blockage (100% on one side and 94% on the other). I had triple bypass surgery on July 22, 2015. My recovery has been normal. I continue to take blood pressure and cholesterol medicine and a new heart medication was added.

Recently, I read about Vietnam vets and agent orange and decided to file a disability claim in November 2015. I recently had my first C&P exam and am awaiting notification of my disability approval and rating.

During the C&P exam, I had a complete physical including chest X-rays, EKG, Blood work, & an Echocardiogram. A MET exam was not completed. When I called to inquire about this, I was told that my MET scores were on file and a separate exam was not needed at this time. How would the VA determine my MET scores without a separate exam? How can I find out what MET numbers they have on file?

Based on above information, any idea what my rating might be? Do you have any suggestions for me going forward?

Thanks,
Larry

Submitted by jhaycock@ptla.org on Wed, 2016-03-30 09:46

Thank you for your comment! Here is Jim's reply:

Rather than subjecting you to guesswork, I'll say that you need to wait on the decision. I could guess what VA should do, I can't predict what they will do. You're well into the process of gaining service connected disability ratings for agent orange presumptive conditions.
At this point in the adjudication process there's really nothing that you can or should do.

Wait for the decision letter. It'll arrive in a big brown envelope.
Once the decision letter arrives, I'll be happy to review that with you. Upon review we can determine if VA made the right decisions and assigned the correct ratings for your circumstances. If your ratings aren't what you think they should be, we can begin the appeals process. I predict that more than 1/2 of all initial decisions are flawed and require appeal.

Metabolic equivalents (METS) aren't very accurate if one is guessing at the patient's activity levels.
https://www.ncsf.org/enew/articles/articles-heartratefrommet.aspx

But again, I wouldn't worry about any of it until you have a decision in hand.

-Jim