'I Have 100 Percent Service-Connected Disability Now What

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Subject: The Answerman: 'I Have 100 Percent Service-Connected Disability--Now What?'
Date: Tue, 8 May 2001 17:09:52 -0500
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The Answerman: 'I Have 100 Percent Service-Connected Disability--Now What?'

May 4, 2001
John Howell
Stars and Stripes Veterans Advocate



 

 

You have reached 100 percent VA service-connected disability. What does that mean?

VA regulations say that total disability exists if there is any impairment of mind or body sufficient to render it "impossible for the average person to follow a substantially gainful occupation."

Total disability can be either temporary or permanent; but when you have 100 percent, you receive the top monthly compensation under the VA compensation schedule. Currently, single veterans with 100 percent service-connected disability receive $2,036 per month.

Since 100 percent is the highest rating you can receive, you should be aware that there are differences in what a rating of 100 percent means and how it is applied.

If you are receiving 100 percent because you are undergoing a period of convalescence from hospital, surgery, or home treatment, you receive 100 percent disability payments only for the duration of that treatment. When your treatment or convalescence is over, so is your 100 percent.

TDIU Payments

If you reached the 100 percent level because you are "totally disabled, individually unemployable" (TDIU), you have the right to receive the $2,036 per month. But TDIU is not a "permanent and total" rating.

If your 100 percent is not due to hospital, surgery or home treatment, the law grants you further rights. First, it is more difficult--but not impossible--to reduce your 100 percent rating to a lower level.

You will be glad to know that your rating cannot be reduced merely because a VA adjudicator thinks it should be reduced. The law says that any person who has a 100 percent rating, other than for convalescence, must be found to have a "material improvement" in their condition before the rating can be reduced.

The test is whether you have "attained improvement under the ordinary conditions of life," that is, "while working or actively seeking work." It does not mean that your symptoms have been brought under control by prolonged rest or by following a regimen that precludes work.

The regulation also makes clear that if you received your 100 percent rating because of "clear error," then none of these protections apply.

Further Protections

Another protection is available to 100-percenters as well as everyone with any disability rating. If your condition, and your rating, has continued unchanged for five or more years, the law requires that your medical records must support a "sustained improvement" before your rating can be reduced.

This protection means the VA cannot use a single medical examination to reduce someone who has held a particular rating for five or more years. To prove that you have a "sustained improvement," they must consider your entire medical history before making any reduction. This is called "stabilization" of your rating.

Similarly, if you have been continuously receiving a particular benefit for 10 years, the VA cannot terminate your service-connected status unless there was fraud or unless the VA discovers you did not have the required length or character of service. If you have been rated at a particular level for more than 20 years, that rating cannot be reduced unless there was fraud.

Being "permanently and totally disabled" means, under VA regulations, that your "impairment is reasonably certain to continue throughout [your] life." Examples include the loss, or the loss of the use of, both hands; both feet; one hand and one foot; or the sight of both eyes; or becoming permanently helpless or bedridden.

If you are not that seriously injured, it is still possible to be rated "permanently and totally disabled" based on your medical history. Your medical history must show that your disability was of sufficient severity to warrant a total disability rating; must have included extended or intermittent hospitalization; and the rating agency must be of the opinion that you will be unable to adjust to "a substantially gainful occupation."

Ancillary Benefits

Once you have your total disability, there are ancillary benefits. Totally disabled veterans have access to military commissaries and base/post exchanges. They also may be eligible for membership in military clubs. In addition, most states provide various benefits such as special license plates, free fishing licenses and so on free of charge or at reduced cost.

If you are disabled--especially at 100 percent--there are protections and related benefits. Considering what you went through to get that disability, that's only fair.

John E. Howell, a retired Air Force colonel and attorney in Washington, D.C., can be reached at

jhowell@sperduto-law.com.