Nicholas Briggs: Good afternoon everyone and  welcome to CCK Live. My name is Nicholas Briggs  

and I'm an accredited agent here  at Chisholm Chisholm & Kilpatrick.  

I'm joined today by fellow accredited  agents, Michelle Detore and Frank Padula,  

and in this video, we're going to be  explaining when VA ratings become permanent.

So, first and foremost,  what is a permanent rating?  

VA deems a disability permanent when it's  reasonably certain based on medical evidence  

that the level of impairment is going to  continue for the rest of the veteran's life.  

For this reason, VA is allowed to take age into  consideration when determining the permanent  

status of a condition because it necessarily means  that they're considering the stability of the  

condition for the rest of the veteran's life. And  for this reason, it's often difficult for younger  

veterans to have permanent and total ratings  and permanent disability ratings in particular.  

So, when VA decides that a particular  service-connected disability is permanent,  

that condition no longer requires additional  re-examination to determine the current status.

So, with that in mind, Michelle,  can you tell us a bit more about  

how a veteran can tell when their  disability rating is permanent?

Michelle Detore: Yeah, so, unfortunately, there's  no one clear way. So, it can make it a little  

difficult to know, but there are a few things you  can look for when you get your rating decision.  

So, on some rating decisions, there is  a clear check box that says that you  

are permanent and total. A clear indicator  which we see more often is the eligibility  

to dependency educational assistance or chapter  35 benefits as well as CHAMPVA is established.  

They'll be a clear notification saying that  you don't need any future examinations.

And a lot of times when you're reading the  body of the rating decision, where it talks  

about that they've awarded benefits and why, it  will say that your condition has been noted to be  

permanent in nature, and then if they're just also  deciding its permanent, you won't see any language  

saying that you're required to go to another  future exam on the condition. Unfortunately,  

it varies by the Regional Office so that's why  it's not clear, but those are a few things you  

can look for and if you're not sure it's always  good to reach out to VA themselves or if you  

are working with a representative,  they should be able to tell you too.

Nicholas: Perfect. And like you mentioned,  the disability and whether or not it's  

permanent can affect whether or not a new  VA examination is going to be scheduled. So,  

one surefire way to tell whether or not a  condition is permanent is whether or not  

they decide to schedule you for a new exam  or they tell you on your code sheet that  

future exams will be scheduled. So, that's  definitely something good to keep in mind.

One of the reasons why the permanent status of  a particular condition is important is because  

it affects when and how a VA can reduce  a veteran's rating for that condition.  

So, with that in mind, Frank, can you tell us a  bit more about when and how VA can reduce ratings?

Frank Padula: Definitely, and it's  important to note that veterans with  

service-connected disabilities that are not  considered permanent, may be sent to future  

compensation and pension, or just C&P  examinations. And during those examinations,  

VA will evaluate the severity of those  disabilities, and then rate them appropriately.

But you have to remember a rating reduction can  only take place in cases where VA has reviewed  

the veterans' entire medical history. The veteran  undergoes a thorough examination that is adequate  

for rating purposes and VA finds sustained  improvement in the veterans' ability to function  

under the ordinary conditions of life  and work. So, sustained improvement  

is considered to have been demonstrated when the preponderance of the evidence portrays a lessening  

of service-connected symptoms that have persisted  consistently over time across situations and under  

the conditions of ordinary life. So, in other  words, the improvement must not be circumstantial  

in nature or attributable to mitigating factors  such as temporary alleviation by prolonged rest.

So, it's also important to note  that when reducing ratings,  

VA is required to issue a notice  of that proposed reduction.  

That notice must give the veteran 60 days to  submit evidence to show why that reduction should  

not take place and 30 days to request a hearing.  However, if the reduction does not change the  

actual amount of compensation that a veteran is  receiving, VA does not need to give them notice.

Nicholas: Perfect. Thanks, Frank.  And like, we talked about before,  

those are the sort of basic rules  that VA needs to adhere to and follow  

whenever they're trying to reduce a  veteran's rating, generally speaking.

There are, however, some rules that kick in when  a veteran meets certain requirements that impose  

additional requirements on VA before they can  take the step of reducing a veterans' condition.  

So, in the case of 100% total ratings,  say a 100% rating assigned for PTSD,  

VA can only reduce a total rating if there's a  material improvement in the veterans' condition.  

And beyond that material  improvement, there needs to be  

improvement demonstrated under the observable  change in their ability to function under  

the conditions of ordinary life. And if the VA  exams and the evidence that VA relies on doesn't  

specifically address the veteran's ability to  function under their daily life, then VA is going  

to have a hard time reducing and upholding  a reduction from a 100% total rating.

Another example of a situation where it becomes  harder for VA to reduce a condition is when a  

condition is stabilized, meaning that the same  rating has been in place for five years or more.  

And in those cases, as we said, the regulations  consider the condition to be stabilized,  

but what that really means in terms of practical  reasons, is that VA can't rely on that single  

re-examination to reduce your rating. They're  going to look at the exam and they're going  

to look at the evidence contained therein, but  they need to look for other evidence and point  

to that other evidence as well. And like Frank  mentioned, they need to be able to show sustained  

improvement across multiple pieces of evidence and  medical treatment records in the appeal period.

If and when the VA tries to reduce a condition  that's been in place for five years or more  

based on a single service-connected disability,  that's something that a veteran should consider  

appealing or reaching out to an accredited  representative for assistance with appealing.

So, up to this point, we've talked mostly about  when and how VA can reduce a veteran's condition.  

But Michelle, could you tell us a bit about  

situations where VA can't  reduce the veterans' rating?

Michelle: Yeah, so with VA, if your condition is  considered static, that's a way of saying that  

it's unchanged or it's not going to change,  they will not reduce your rating. Typically,  

what you'll see language in rating decisions  say that a disability proceeds as permanent  

in nature or character and there is  no likelihood of improvement. That's  

a very big common terminology you'll see is  that there's no likelihood of improvement.

If you're over the age of 55, keep in mind, there  are some exceptions that do apply to that, so  

it's not just across the board. And then, if your  rating is the minimum prescribed rating, so, let's  

just say the fact that you have a 0% rating, and  that's a minimum. A good example usually is using  

tinnitus. Tinnitus, the minimum and the max is  10%, so typically you don't see that get reduced.

Then on top of that, there are some protected  VA disability ratings where Congress has  

determined that under certain situations  and conditions it's not necessary for VA to  

use resources to check on a veteran's  service-connected condition. So, therefore  

some service-connected conditions can fall under  what we call the protected rating criteria,  

meaning that it can't be reduced or revoked  even by a VA future examination and that's  

a big thing here. Because that's  honestly most notable where we do see  

examinations are usually the most common  reason that VA does reduce a veteran's rating.

Nicholas: Thanks for that Michelle. And  with that in mind, Frank, can you go into  

a bit more detail about some examples of these  protective conditions or protected VA ratings?

Frank: Yes. So, the first is what you might call  the 10-year rule and that means VA cannot sever  

service connection for veterans who have been  rated for that disability for 10 years or more. VA  

can reduce the veteran's rating but not terminate  benefits unless there's evidence of fraud.

Along the same lines, for 20 years or more, this  means that service-connected disabilities rated at  

or above a certain disability rating level for  20 years or longer are considered to be called  

continuous. So, VA cannot reduce a continuous  rating below the original level unless they  

determine the rating was based on fraud. So,  for example, if a veteran's service-connected  

depression was originally rated at 50 percent  disabling and then fluctuated between 50% and 70%  

over the next 20 years, VA could not  reduce the rating below 50% after that.

Nicholas: Okay. Thanks for that Frank. And again,  we're talking about these permanent and total  

ratings because there are additional protections  that kick in for these veterans who are being paid  

at a certain level, and at a certain point, they  have this expectation that 10, 20 years down the  

line, VA isn't going to come out of anywhere  and try and schedule them for a new exam and  

reduce their benefits for no reason. It's built  into the regulations to try and protect these  

veterans and make sure that their ratings stay  in place when that severity is really warranted.

But another reason why the idea of permanence  is important in VA law is because of the concept  

of permanent and total disabilities. So, in  situations where a veteran has that combined 100%  

rating or TDIU benefits and they're determined  to be permanently and totally disabled, the same  

thing goes with those additional protections.  You're not going to have your rating reduced  

unless there's some prompt that puts VA  in a position where they can't reduce you.

So, oftentimes we see veterans who  have that permanent and total status,  

but they either file new service connection claims  or new increased rating claims. And when you give  

VA a reason to schedule you that new VA exam, you  do run the risk unfortunately of them potentially  

reducing or removing your permanent total status.  So, that's why the two kind of go hand in hand. On  

the one hand, if you have a permanent and total,  you're not going to have those new VA examinations  

but if you give VA a reason to schedule those  examinations, there is always that small chance  

that they could reduce some of your ratings that  have been in place. All the rules and protections  

that we talked about earlier are still there,  but it is something important to keep in mind.

And then on TDIU in particular, it's not always  permanent. VA can only reduce or revoke your TDIU  

status if they can demonstrate actual evidence of  employability with a clear and convincing level.  

So, that's a pretty high standard. It's  not just at least as likely as not.  

VA is going to need to show that you're actually  working, not that you hypothetically can work,  

and that work needs to be substantially gainful.

So oftentimes we see situations where veterans  are receiving TDIU benefits and they return to  

work on an extremely limited marginal basis. VA  might try and reduce them in that circumstance,  

but that's not the same thing as returning  to substantially gainful employment.

So, those are the sorts of things to keep  in mind with your TDIU status in particular.  

It's going to vary on a case-by-case basis,  obviously. So, if you do have any questions  

about your long-term TDIU status or returning to  work, or VA has reduced your condition you think  

unfairly, it might be a good idea to look into  reaching out to an accredited representative.

So, with all that in mind Michelle, is  there a way for veterans to ask VA to  

make their conditions permanent  or their total rating permanent?

Michelle: Yes, there most certainly is. You  basically would be applying as, it gets a little  

more complicated in the world of the Appeals  Modernization Act. So, I would say that if you  

do want to make your rating permanent, because it  gets a little complicated as to what form, where  

to go with it, who to reach out to, you know,  either an accredited practitioner or your local  

veteran service organization just to kind of make  sure you're going the right way with it. But you  

most certainly can, and you're basically asking  VA to make your condition permanent and total.

With this, and the same thing with any other  claim or appeal, you need medical evidence,  

treatment records, doctors' opinions, anything  that's going to show that your condition  

is what they call static, meaning it's not going  to change and there's no expected likelihood of  

improvement. But again, keep in mind, I'm talking  about submitting evidence. That's why again,  

with the Appeals Modernization Act, you need  to really be making sure you're going into  

the right appeal lane or, you know,  submitting the right proper form. So,  

it is very beneficial to reach out to somebody  ahead of time, just to ensure that one, you're not  

already permanent and total, and two, to make sure  that you're applying correctly for this benefit.

Nicholas: And not to belabor the point but as  we talked about earlier, anytime VA gets the  

chance to schedule you for a new VA exam, there's  always the chance that they could reduce you. So,  

if you ask for permanent status when you already  have it, and that triggers a VA exam for one  

reason or another, you could be putting yourself  in a position to get your benefits reduced  

unnecessarily. So, it's just something to  keep in mind and there are always service  

organizations or accredited attorneys out there  that can assist you when these issues do come up.

So, that's all we have for you today  on permanent ratings and how they work.  

Michelle, Frank, anything else to add  that we haven't talked about already?

Frank:  

I think, you know, thanks for watching, and if  anyone has any questions about anything at all or  

needs any more information, you can always  check out our website, our YouTube channel,  

and any other resource that  we have out there for you.

Nicholas: Okay. Thanks, Frank. Good afternoon  

all. [END]