Is my rating decision permanent?

The rules for determining whether a disability is permanent differ depending on if the disability is service connected or not. This blog discusses only service-connected disabilities for which Veterans are awarded compensation. This blog does not discuss permanency of a disability for the purpose of nonservice-connected pension.

What makes a disability permanent?

A service-connected disability is permanent if it is reasonably certain to continue throughout the life of the disabled person. 38 CFR 3.340(b) (Note: Having a permanent disability does not automatically make a disability is totally disabling.)

When the VA decides your service-connected disability is permanent, you will not be required to attend future re-examinations for that disability. 38 CFR 3.327(b)(2)(iii)

Per 38 CFR 3.327(b), Veterans falling under the following categories are not subject to future examinations for their service-connected disability:

1. The rated disability is static. (static = not expected to change)
2. The disability rating is stabilized. (stabilized rating = the disability rating remains the same for five years or more and there is no evidence to prove a sustained improvement in the disability)
3. The disability from disease is permanent in character and of such nature that there is no likelihood of improvement;
4. The Veteran is over 55 years of age (unless there are unusual circumstances);
5. The rating received for a disability is the prescribed minimum rating;
6. A lower rating would not affect the Veteran’s combined disability rating.

Can I ask the VA to make my condition permanent?

Yes.  If the VA did not determine your condition was permanent, you can file a claim requesting the VA determine your condition is permanent. In order to be successful with your claim, you should include evidence to support permanency of your condition such as medical treatment records and a doctor’s letter that explains why it is their opinion that your condition is reasonably certain to continue for the rest of your life.  

How can I find out if my service-connected disability is permanent?

Your Rating Decision should include wording that states your condition is permanent or that no future examinations are scheduled. Wording in rating decisions vary.

Having difficulty reading your rating decision?

Please see our helpful article “How to Read & Understand Your VA Rating Decision” 

Protected Ratings

If your rating is protected, the VA cannot reduce or take away your rating unless there is evidence of fraud. 38 CFR 3.344

Protected ratings include:

1. Ratings that are stabilized. (remained the same for 5+ years and no evidence of sustained improvement)
2. Totally disabling conditions. Conditions rated 100% cannot be reduced unless there is evidence of material improvement.
3. The VA cannot sever service-connection for a disability for which the veteran has continuously received benefits for at least ten years.
4. The VA cannot reduce a rating for a disability that has been continuously rated for at least 20 years.

Does the VA consider TDIU permanent?

Generally, no.  Veterans awarded Total disability based on Individual Unemployability (TDIU) must comply with the VA’s periodic certification of continued eligibility rules in order to continue receiving TDIU benefits.  Veterans are eligible to receive TDIU benefits so long as they are unable to maintain substantially gainful employment. The VA can sever TDIU benefits where a Veteran is capable of maintaining substantially gainful employment. The VA will determine a Veteran capable of maintaining substantially gainful employment where the worked for 12 consecutive months and earned above federal poverty line.

After a Veteran is awarded TDIU benefits, the VA will continue to monitor the Veteran’s income. The VA will periodically request the Veteran self-report their income information by submitting a completed VA Form 21-4140: Employment Questionnaire. The VA also verifies the Veteran’s earned income by reviewing earned income data received from the Social Security Administration. Failure to comply with the VA’s income reporting requirements can lead to the VA proposing to reduce the Veteran’s compensation benefits to the schedular rating, resulting in loss of TDIU benefits.

The VA can also revoke TDIU benefits that were obtained through fraud or where the VA made a clear and unmistakable error.

There are a limited number of circumstances in which a Veteran receiving TDIU benefits is not subject to the above-mentioned income certification procedures. If you are fighting to keep your TDIU benefits, it is imperative to have an experienced attorney on your side. At VLG, our attorneys know the ins and outs of TDIU laws. Contact our office today to schedule a consultation.