When Veterans apply for VA disability, they receive a rating based on the severity of their service-connected illness or injury. That is expressed as a percentage ranging from 10% to 100% based on how much the injury or condition decreases a Veteran’s ability to function and overall health.
That percentage is given in 10% increments and determines how much disability compensation a Veteran should receive.
Most VA disability ratings can be adjusted up or down by the VA for several reasons, including Total and Permanent (T&P) Disability, which is a 100% rating. There are certain restrictions and conditions that apply when the VA considers changing a T&P rating.
If you have a T&P rating and are concerned you may be subject to an adjusted rating, here’s what you should know.
Understanding 100% Permanent and Total Disability
According to 38 CFR § 3.340 “Total and Permanent Total Ratings” a P&T disability exists when:
- Such impairment is reasonably certain to continue throughout the life of the disabled person. This is the most common reason why the VA grants a T&P disability rating.
- The permanent loss or loss of use of both hands, feet, one hand and one foot, or of the sight of both eyes or becoming permanently helpless or bedridden constitutes permanent total disability.
- Diseases and injuries of long-standing which are totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.
- Permanent total disability ratings may not be granted because of any incapacity from acute infectious disease, accident, or injury unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals.
- The age of the disabled Veteran may be considered in determining permanence.
Can the VA Take Away or Reduce 100% Total and Permanent Disability?
Although it is uncommon, there are some instances when the VA can re-evaluate or reduce a T&P disability rating. These instances can include:
- An initial 100% T&P rating was found to be based on fraud.
- A 100% T&P rating was awarded, but a Veteran opens a new claim for compensation to include Special Monthly Compensation (SMC). Special monthly compensation (SMC) is a higher rate of compensation that the VA pays to Veterans who lost or lost the use of, specific organs or body parts due to military service, such as an amputation or no effective remaining function of an extremity or organ.
- The Veteran has a 100% T&P rating and opens a new claim for a Specially Adapted Housing (SAH) or Special Housing Adaptation (SHA) grant. This will automatically trigger a Compensation and Pension (C&P) exam for the increase.
- If a VA Quality Review finds a Clear and Unmistakable Error (CUE) for the original 100% T&P rating, a Veteran’s rating could be reduced. Veterans often request CUE motions to re-evaluate and approve benefits or increase their rating, but they CUE motions can also be used to reduce or deny an individual’s disability benefits.
Types of Protected VA Ratings
Some VA ratings are protected; when this is the case, a Veteran is not subject to routine future examinations but may still need to justify their rating if the VA deems it appropriate. Protected ratings include:
100% Total Ratings. The VA can reduce a 100% rating only if there is material improvement in the Veteran’s condition. It must provide evidence that the Veteran’s condition has improved such that there has been an observable change in their ability to function under the conditions of daily life.
Five-Year Stabilized Ratings. Any rating that has remained at the same level for five years or longer is considered “stabilized.” The VA cannot use just one re-examination to show “sustained” improvement, which may only indicate temporary improvement. Instead, the VA must show evidence that predominantly demonstrates “sustained” improvement.
10 Year VA Ratings. The VA can terminate benefits for a Veteran who has been rated for a condition for 10 years or more. However, through the process noted above, the VA can conduct a review to see if a Veteran’s rating should be reduced.
20-Year Continuous Rating. Service-connected conditions rated at or above a certain disability rating level for 20 years or longer are considered “continuous.” VA cannot reduce a continuous rating below the original level unless the original rating was based on fraud.
The 55-Year-Old Rule. Veterans over 55 are exempt from ratings reviews except for rare or unusual circumstances.
Factors Influencing Disability Rating Changes
Veterans facing a possible change will receive a notice from the VA informing them why a reduction is being considered.
Some of the factors that can affect all VA disability rating changes include:
Medical History Review. The VA may review medical documents related to a service-connected disability that is currently paying benefits to a Veteran. These reviews assess current health to see if any improvements have taken place.
Medical Examination. Veterans may be asked to take a C&P exam to further understand a claimant’s current physical or mental health. The exam will be similar to the exam many Veterans take before initially receiving disability benefits.
Evidence of Improvement. The VA must find evidence of improvement in daily living and work as part of an overall consideration of reducing a disability rating.
How The VA Disability Review and Appeal Process Works
The VA will review your medical history and request you complete a C&P exam before deciding if there is sufficient evidence to reduce your T&P rating. If the VA decides to reduce your rating, you will receive a Notice of Reduction.
Veterans usually have 60 days to respond to the letter to provide additional evidence to dispute the VA’s decision.
Veterans can appeal their decision to return to the original compensation level if the VA still decides to reduce benefits. If you disagree with the reduction, you can file a Notice of Disagreement to start the formal appeal process.
You have one year from the date the VA mails your reduction notification to file your notice of disagreement.
The VA said the appeals process can take several months or longer, but if the VA grants your appeal, you’ll receive back-pay of your benefits to offset the reduction.
Preparing for a Disability Rating Review
You will need to supply medical documentation based on the focus of the Notice of Reexamination Letter.
Veterans have 30 days to request a hearing to contest the VA decision and up to 60 days to submit evidence that a reduction in the rating is not warranted.
It’s essential to attend your reexamination appointment and supply supporting evidence, otherwise, the VA terminate your benefits without additional warning.
If you meet any of the protected ratings and the VA contacts you to reexamine your case, contact them and explain why you do not believe you should be reexamined. This may lead to a cancellation.
Impact on Benefits and Services
A reduced rating may significantly impact a veteran’s monthly payment from the VA. It may also impact medical services as well.
In addition, a reduced rating could also affect Social Security benefits. The Social Security Administration provides expedited processing of disability claims filed by veterans who have a 100% Permanent and Total disability rating.
Social Security and the VA pay disability benefits to qualifying people, but programs, processes, and criteria for receiving benefits differ. That means a VA rating of 100% P&T doesn’t guarantee that you’ll receive Social Security disability benefits.
To receive disability benefits from Social Security, a person must have a severe impairment expected to last at least one year or to result in death. The impairment must be so severe that the person could not perform any substantial work.
Can You Work If You Have a 100% Total and Permanent Disability Rating?
If you are a disabled Veteran with a 100% Total and Permanent disability rating, you can work, and there are no income restrictions.
However, if you have a 100% Total Disability Individual Unemployability (TDIU) rating, you cannot work and draw VA disability benefits. TDIU means you are being compensated because your service-connected impairments prevent you from being able to maintain substantially gainful employment.
Substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the occupation in the community where the Veteran resides.
Substantially gainful employment is:
- Competitive (not protected) employment, and with
- Earnings exceeding the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.