Every VA disability rating can be reduced by the VA for a variety of reasons, so the short answer is yes, the VA can take away a permanent and total disability rating, but it is not common.
What is permanent and total disability?
Before we dive into the conditions that could lead to the VA taking away a permanent and total disability rating, let’s look at what the VA considers when granting a P&T rating. According to38 CFR § 3.340“Total and Permanent Total Ratings”permanent and total disability exists when:
- “[an] impairment is reasonably certain to continue throughout the life of the disabled person.
- The permanent loss or loss of use of both hands, or of both feet, or of 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 actually 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 as a result 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 person may be considered in determining permanence.”
When can a permanent and total disability rating reduced?
If you have a 100% Permanent and Total (P&T) rating, it’s unlikely you’ll be re-evaluated or have your rating reduced, unless you’ve done something to trigger a VA review of your case. This can occur when:
- The initial 100% P&T rating was found to be based on fraud.
- You have a 100% P&T rating but open 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. (Loss, or loss of use, means amputation or no effective remaining function of an extremity or organ.) If the VA Rater can see that one or more of your impairments has gotten better or potentially could get better, your rating may be reduced.
- You have a 100% P&T rating and open 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 the C&P examiner determines your condition has improved or could improve the VA may reduce your rating.
- If a VA Quality Review finds a Clear and Unmistakable Error (CUE)for the original 100% P&T rating, your rating could be reduced. (While CUE motions are often requested by Veterans to get the VA to re-evaluate and approve benefits or increase their rating, they can also be used by the VA to reduce or deny an individual’s disability benefits.)
Under what conditions are VA ratings protected?
Protected VA ratings are not subject to routine future examinations (RFE). Here are the types of protected VA ratings:
- The disability is“Static,”that is without material improvement forfive years or more.
- The disability is“Permanent”and there is no likelihood of improvement.
- The disability has been in place forten years or more. (The rating can still be reduced [not eliminated] if medical evidence shows that the disability has improved.
- The disability has been continuously in effect for20 years or more.
- The Veteran isover 55 years of age(except under unusual circ*mstances)
- The disability is rated at theprescribed schedular minimumwithin its Diagnostic Code (DC)
- The disability is rated at 10% or less,or
- The combined evaluation would not change even if the VA reevaluation resulted in a reduced evaluation for one or more disabilities.
If you have permanent and total VA disability rating can you work?
Yes, if you are a disabled Veteran with a 100% permanent and total disability rating you can work and there are no income restrictions, but there is one exception. The exception is 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 work.
Because filing for disability or an increase in rating can be complicated and sometimes frustrating, it can benefit you to hire an experiencedVA disability attorneyto help with your claim. There’s no easy formula for addressing Veterans’ claims. At Cuddigan Law, we examine each case individually, develop the best strategy, and work with you to submit your claim or file an appeal if it’s been denied. Call or email us for a free evaluation of your situation.
