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PERMANENT AND TOTAL? NOTHING IN THE VA IS

PERMANENT AND TOTAL! -- Veterans' Advocate

Jim Strickland explains how the system works.

 

 

Veterans' Advocate Jim Strickland provides regular columns for
VA Watchdog dot Org.

If you would like to contact Jim about his columns, you can email him here...

The archive of Jim's articles is here...

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The definition of "Percent": A proportion multiplied by 100.

The definition of "Permanent": Continuing in the same state, or without any change that destroys form or character; remaining unaltered or unremoved; abiding; durable; fixed; stable; lasting; as, a permanent impression. Continuing or enduring without marked change in status or condition or place; "permanent brain damage".

The definition of "Total": Absolute: without conditions or limitations; "a total ban" sum: a quantity obtained by the addition of a group of numbers damage beyond the point of repair; complete in extent or degree and in every particular; "a full game"; "a total eclipse"; "a total disaster"

The definition of "Disabled": Markedly unable to function as a consequence of injury or illness so badly injured as to be excused from continuing; "disabled veterans".

You've recently received your notice from the Veterans Benefits Administration (VBA) that you have been awarded a rating of 100% Permanently and Totally Disabled. (For our purposes right now it makes no difference if this is a "Schedular" rating or an "Individual Unemployability [IU] rating.)

You feel a sense of relief. You're vindicated! You've played by the rules and proven your claim to be valid. Your rating is officially going to last forever as continuing in the same state, without any change, without conditions or limitations because you are declared to be markedly unable to function as a consequence of injury or illness or you were so badly injured as to be excused from continuing to work.

That is what that award letter says, right? If you want further proof, look right there where it says, "No future exams are scheduled." and "Dependents are eligible for Chapter 35 DEA benefits." Thankfully, you and the VBA are done, finished, wrapped up but for the once each month they'll make your deposit.

Right?

"Jim, please tell me that it's over!!!"

A VA Watchdog reader dropped this in my mail last week: (Names and places redacted for privacy.)

"I was rated P&T in 2004 with metastasized prostate cancer. I was told that I would not be required to receive any more evaluations. A couple of weeks ago I received a phone call from a place called QTC http://www.qtcm.com/  that said they were calling about my recent claim for prostate cancer radiation. My radiation was done in 2003 so this was inaccurate. I told the lady that I was told that I would not have to receive another evaluation and she wanted a copy of the award letter. I faxed it to her. She then called back and said that, I was right that I didn't have to go to the exam. I am in (State). The person in (City) that she is calling for is (Official's Name) with the V.A. Next I get a letter stating that I was right, they would make their decision on the current medical records and that they saw no need to keep my disability at 100%, as my psa has been continuously down. I had a radical prostatectomy in 2002. Three months later my PSA rose again and I was given radiation. Again my PSA rose during radiation. They stopped the radiation and I was given Chemotherapy and Eligard (hormone). I thought that P&T was P&T. How can this happen and what can I do? This (Official's Name) has a notorious reputation. My P&T was awarded me in (State). We moved to (A different state) a year and a half ago to be closer to the kids and grandkids. I was in Vietnam from 1969-1970."

The language of the VBA is notoriously indecipherable to us commonfolk. I sometimes think that when Reverend Charles Dodgson (writing as Lewis Carroll) wrote of Alice traveling through that rabbit hole, he was making a metaphor for dealing with the VBA. The things Alice encounters in her journey make little sense to her. Her reality no longer applies in this fantastic world but everyone she meets along the way thinks her experience is perfectly normal. No discussion of VBA Speak is complete without first glancing at what is known as "VA Math". In your world 2+2 probably equals 4 and that's how you balance the family budget and make the car payments. Having passed through the rabbit hole with Alice, your friendly VBA representative will teach you a new way to add.

Your lesson will begin at 38CFR4.25, Pages 364-366, where you'll eventually read the Combined Ratings Table. Glance here to see how your rating was arrived at and you'll learn, "Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent."

There, that was easy, wasn't it?

There's plenty more VA math where that came from but as I have a life to get on with, I'll let you continue reading on your own at http://frwebgate.access.gpo.gov/cgi-bin/get
-cfr.cgi?TITLE=38&PART=4&SECTION=
25&YEAR=2003&TYPE=TEXT 

VBA compensation is unique. The basis for your disability rating is defined in 38 CFR, §3.321; General Rating Considerations. "Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and death pension, and in eligibility determinations. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability."

VBA uses a schedule developed between 1925 and 1945 to determine your "average impairment in earning capacity" while you are a civilian employee suffering from a disability caused by or aggravated by your military service.

In §3.105, Revision of Decisions, we discover your rating may be changed because there is (a) Error (b) Difference of opinion (c) Character of discharge (d) Severance of service connection (e) Reduction in evaluation—compensation. There are others but for today we'll focus on (e). In (e) the regulation tells us that, "Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons."

Moving on to §3.652 we learn, "Periodic certification of continued eligibility (a) Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. The beneficiary will be advised at the time of the request that the certification must be furnished within 60 days from the date of the request therefore and that failure to do so will result in the reduction or termination of benefits."

We've established that VBA may propose a reduction to your rating if a "reduction in evaluation of a service-connected disability or employability status is considered warranted". We know that VBA may require "Periodic certification of continued eligibility". We're now aware that if VBA targets you and suggests that your rating be lowered or eliminated, you have 60 days to refute that and prove that you continue to deserve your original award.

How would VBA determine that your rating may be lowered? By ordering you to undergo a reexamination; §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."

You've received notice that VBA is trying to lower your rating. You're mad as hell and you aren't going to take it any more. You've written an angry letter to your Congressman as well as the VBA telling them your condition has not changed and forcing you to drive to the VHA Medical Center for a C & P is a waste of everyone's time. You determine that the C & P examiner with QTC is a hired gun and you're better off not going to that examination.

Before you make up your mind to skip that C & P exam, read §3.655; Failure To Report For Department of Veterans Affairs Examination. (a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. (c) Running award. (1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under §3.951(b) of this part, reduced to the lower evaluation.

This complex set of rules goes on and on. There are a few "protected" categories where you might feel secure in maintaining your rating forever. The majority of us don't fall into those slots. We're vulnerable to reexamination and a lowered rating at any moment. If you received your rating in the last decade, if your medical condition has improved, if you started work at a new job after your award or if there have been any other major changes to your lifestyle you're subject to an attempt to lower your rating at any time.

The Veteran who wrote me the email above is in a tight spot. He had a bad prostate cancer. It's one of the "presumptive" diseases and is easily connected to his service in Vietnam. His medical treatment was extensive and it was all life threatening. But, he seems to have been cured. The PSA blood test is often still thought of as the standard test to determine whether or not a man is developing prostate cancer or after treatment, the success of treatments. His PSA has shown a steady normal result. Many men lead healthy, productive lives after treatment for prostate cancer.

So, what should our Veteran do?

First, consider this exchange after our Veteran receives the letter ordering him to the C & P exam; "I told the lady that I was told that I would not have to receive another evaluation ..." That lady replied to our Veteran, "...and [she] said that, I was right that I didn't have to go to the exam...Next I get a letter stating that I was right, they would make their decision on the current medical records and that they saw no need to keep my disability at 100%..."

Our Veteran didn't understand that by refusing or resisting the exam, that lady told him that, "When a claimant fails to report for a reexamination and the issue is continuing entitlement...payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under §3.951(b) of this part, reduced to the lower evaluation."

If you don't show up for your exam, VA will look at your history that is reasonably available to them and adjudicate with only that evidence. I urged him to get in touch with a local State or County Veterans Service Officer for guidance. He needs quick action by someone experienced with the VARO in that locale. He needs to get to that C & P exam.

As in most other things in our lives, the most effective remedy for these issues is to be prepared. Before this happens to you, keep your records active. The very best thing you can do for yourself is to continue to seek ongoing, regular, documented treatment through your VHA network. Any ailment you have, whether or not it's connected to your claim, must be recorded. The best place for it to be recorded is in your VHA medical record. In the example above, our Veteran should have been seeking continuing follow-up with his VHA primary care doctor and his specialty doctors to treat any other effects of his prostate cancer. Has there been scarring that's caused urinary retention, bladder infections, chronic severe pain or loss of bladder control? Prostate cancer treatment often causes erectile dysfunction, has our Vet sought a remedy for that problem? Are there issues of anxiety or PTSD secondary to facing cancer that have required treatment or anti-depressive medications? Has his overall health declined as a result of his service connected illness and as a result he is unable to accomplish tasks of daily living due to weakness and fatigue?

If VA can take a look at his record and see in the last couple of years that he's doing fairly well, you can bet that he's going to have a tough time of defending his right to a 100% rating. If his last visit to his doctor demonstrated a guy fortunate enough to be cured, who has no complaints and who is getting along nicely, he's got a problem. If his record shows regular visits, at each visit he had a complaint of some physical disturbance related to his condition and that although his PSA was lower, he still suffered from his disease, it's much more likely his benefits will continue uninterrupted.

Nothing in VA is Permanent and Total. Two plus two does not equal four. To be awarded a disability compensation rating by VBA is the beginning, not the end. Once you have that award letter, it's up to you to be in a state of constant readiness to defend it. As the man said long ago; "It ain't over until the fat lady sings". When we are speaking of our dealings with VBA, we'll never hear that song. It ain't over until long after they issue that final brass marker noting the end of our journey.

Read more of these regulations here...

http://www.warms.vba.va.gov/bookb.html#m 

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Larry Scott  --