To appeal or not appeal a 100% permanent VA rating

hooyah215

Well-Known Member
Registered Member
Good evening,

I have received a 100% VA disability, but got 0% on 3 separate ratings that I'm debating on whether or not to appeal due to their explanation why. I printed a letter from the eBenefits that says "This total disability is considered permanent. You are not scheduled for future examinations." Would you advise whether to appeal, or not? Thank you.
 

RonG

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
You could qualify for SMCS-S if you were approved as follows:

If you have a 100% rating for a condition and you are rated for 60% in any other single condition, then you are automatically entitled to an extra monthly payment known as SMC-S. The SMC-S rate replaces the 100% rate and is $300+ more than the 100% rate. See VA tables below.

https://www.benefits.va.gov/compensation/resources_comp02.asp

Cornell Law:
i)Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,
(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or
(2) Is permanently housebound by reason of service-connecteddisability or disabilities. This requirement is met when the veteranis substantially confined as a direct result of service-connecteddisabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.
https://www.law.cornell.edu/cfr/text/38/3.350


Ron
 
Last edited:

euphonix

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Good evening,

I have received a 100% VA disability, but got 0% on 3 separate ratings that I'm debating on whether or not to appeal due to their explanation why. I printed a letter from the eBenefits that says "This total disability is considered permanent. You are not scheduled for future examinations." Would you advise whether to appeal, or not? Thank you.
While there is certainly a possibility that you could win the appeal and end up with SMC, there is also the very real chance that you also lose your 100% rating. Anytime the VA opens your claims folder you run the risk of them reexamining any or all of your conditions. "Permanent" doesn't mean that they can't or won't reexamine you, it just means that there are no longer any scheduled reexaminations. In your case you need to weigh the pros and cons and determine if the chance of getting SMC is worth the potential risk of dropping below a 100% rating.
 

chaplaincharlie

Super Moderator
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
In addition to the excellent advice from @RonG - are any of the conditions rated 0% presumptive conditions for CRSC?
 

Warrior644

Super Moderator
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
Good evening,

I have received a 100% VA disability, but got 0% on 3 separate ratings that I'm debating on whether or not to appeal due to their explanation why. I printed a letter from the eBenefits that says "This total disability is considered permanent. You are not scheduled for future examinations." Would you advise whether to appeal, or not? Thank you.
Welcome to the PEB Forum! :)

Additionally to @euphonix's feedback above...

With my lengthy experiences in the two ongoing DoVA appeals processes [e.g., current/old/legacy Board of Veterans' Appeals (BVA) in Washington, D.C., and via early "opt-in" the new Rapid Appeals Modernization Program (RAMP) which becomes fully effective in February 2019], you definitely will need to thoroughly review all received DoVA decision letters to include all supporting medical evidence and/or medical documentation for the DoVA disability claim(s) submitted at that particular point in time. Oversights and mistakes in the disability claim adjudication process occur at times unfortunately albeit it should not result in the non-award of any potential DoVA disability compensation, or a non-properly adjudicated DoVA disability rating; hence the establishment of a DoVA appeals process. These oversights and mistakes actually occurred on the adjudication of my previous DoVA disability claims after the award of a DoVA 100% "P&T" rating decision although I was already awarded a DoVA 100% rating from completion of the DoD IDES MEB/PEB process when on military active duty.

Based upon the aforementioned comments within your PEB Forum thread, it seems that you don't have any disagreement with the overall DoVA 100% P&T increased rating decision. If my assumption is correct, then you do not need to appeal this aspect (e.g., the 100% P&T increased rating) of the recent DoVA decision letter. As such, your DoVA 100% P&T increased rating decision shall remain unchanged and the potential review of all medical conditions will not occur during an appeal on any "other" condition(s) from this DoVA decision letter. In a similar situation, I was granted a DoVA 100% "P&T" increased rating but didn't agree with some of the other decisions (i.e.., non-service connected disabilities, and award of a DoVA 0% rating) on that particular DoVA rating decision letter. So, I submitted a DoVA NOD appeal and I wasn't subjected to any re-examination of all service connected conditions.

Since you only have a disagreement with the three separate medical conditions each receiving an award of a DoVA 0% rating, then you potentially should only consider appealing those specific VA rating decisions. By the way, since you already now have a basic DoVA 100% scheduler rating which includes the current three DoVA 0% ratings, your overall DoVA 100% P&T increased rating couldn't drop below a 100% even if the DoVA NOD appeal was denied or unsuccessful. Albeit, if you are granted full benefits sought on the DoVA NOD appeal and all three DoVA 0% ratings were indeed increased to an applicable rating percentage in accordance with 38 CFR VASRD then your opportunities of receiving any DoVA SMC becomes permissible if all applicable criteria are met IAW 38 U.S. Code § 1114.

Nonetheless, it's your final decision to make if a DoVA NOD appeal is warranted to ultimately correct any definite injustice with the DoVA Rating Agency's adjudication of your DoVA disability claim. I totally believed in the supporting information on my medical evidence and/or medical documentation upon the submission of a DoVA disability claim. That said, my stance is to never default acceptance of any injustices.

As such, maintaining the aforementioned stance has been ultimately very successful with the approvals of my appeals via the DoD IDES MEB/PEB process while on military active duty, DoD LDES PEB process while placed onto the TDRL as a military disabled veteran, and the current/old/legacy DoVA BVA process with submission of additional DoVA disability claims over 4 1/2 years ago after becoming a military disabled veteran.

To date, I have a DoVA appeal ongoing for my last two issues in which I elected early participation in the new DoVA RAMP from the current/old/legacy DoVA BVA process. Per a letter from the DoVA Evidence Intake Center, the current/old/legacy appeals process in 2016 had veterans waiting an average of 3 years for resolution of their appeals and those that received a decision from the BVA waited an average of 7 years from the date that they filed their NOD. By electing an early "opt-in" to the DoVA RAMP, I selected the "Higher-Level Review Lane" option since I don't have any additional evidence to submit in support of my claim but I believe that there was an error in the initial decision. As such, a higher-level review consists of an entirely new review of a veteran's claim by an experienced VA claim adjudicator, and the DoVA VBA has a goal to complete these higher-level reviews in an average of 125 days. Take care!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
 
Last edited:

Keatsj1964

PEB Forum Regular Member
Registered Member
Welcome to the PEB Forum! :)

Additionally to @euphonix's feedback above...

With my lengthy experiences in the two ongoing DoVA appeals processes [e.g., current/old/legacy Board of Veterans' Appeals (BVA) in Washington, D.C., and via early "opt-in" the new Rapid Appeals Modernization Program (RAMP) which becomes fully effective in February 2019], you definitely will need to thoroughly review all received DoVA decision letters to include all supporting medical evidence and/or medical documentation for the DoVA disability claim(s) submitted at that particular point in time. Oversights and mistakes in the disability claim adjudication process occur at times unfortunately albeit it should not result in the non-award of any potential DoVA disability compensation, or a non-properly adjudicated DoVA disability rating; hence the establishment of a DoVA appeals process. These oversights and mistakes actually occurred on the adjudication of my previous DoVA disability claims after the award of a DoVA 100% "P&T" rating decision although I was already awarded a DoVA 100% rating from completion of the DoD IDES MEB/PEB process when on military active duty.

Based upon the aforementioned comments within your PEB Forum thread, it seems that you don't have any disagreement with the overall DoVA 100% P&T increased rating decision. If my assumption is correct, then you do not need to appeal this aspect (e.g., the 100% P&T increased rating) of the recent DoVA decision letter. As such, your DoVA 100% P&T increased rating decision shall remain unchanged and the potential review of all medical conditions will not occur during an appeal on any "other" condition(s) from this DoVA decision letter. In a similar situation, I was granted a DoVA 100% "P&T" increased rating but didn't agree with some of the other decisions (i.e.., non-service connected disabilities, and award of a DoVA 0% rating) on that particular DoVA rating decision letter. So, I submitted a DoVA NOD appeal and I wasn't subjected to any re-examination of all service connected conditions.

Since you only have a disagreement with the three separate medical conditions each receiving an award of a DoVA 0% rating, then you potentially should only consider appealing those specific VA rating decisions. By the way, since you already now have a basic DoVA 100% scheduler rating which includes the current three DoVA 0% ratings, your overall DoVA 100% P&T increased rating couldn't drop below a 100% even if the DoVA NOD appeal was denied or unsuccessful. Albeit, if you are granted full benefits sought on the DoVA NOD appeal and all three DoVA 0% ratings were indeed increased to an applicable rating percentage in accordance with 38 CFR VASRD then your opportunities of receiving any DoVA SMC becomes permissible if all applicable criteria are met IAW 38 U.S. Code § 1114.

Nonetheless, it's your final decision to make if a DoVA NOD appeal is warranted to ultimately correct any definite injustice with the DoVA Rating Agency's adjudication of your DoVA disability claim. I totally believed in the supporting information on my medical evidence and/or medical documentation upon the submission of a DoVA disability claim. That said, my stance is to never default acceptance of any injustices.

As such, maintaining the aforementioned stance has been ultimately very successful with the approvals of my appeals via the DoD IDES MEB/PEB process while on military active duty, DoD LDES PEB process while placed onto the TDRL as a military disabled veteran, and the current/old/legacy DoVA BVA process with submission of additional DoVA disability claims over 4 1/2 years ago after becoming a military disabled veteran.

To date, I have a DoVA appeal ongoing for my last two issues in which I elected early participation in the new DoVA RAMP from the current/old/legacy DoVA BVA process. Per a letter from the DoVA Evidence Intake Center, the current/old/legacy appeals process in 2016 had veterans waiting an average of 3 years for resolution of their appeals and those that received a decision from the BVA waited an average of 7 years from the date that they filed their NOD. By electing an early "opt-in" to the DoVA RAMP, I selected the "Higher-Level Review Lane" option since I don't have any additional evidence to submit in support of my claim but I believe that there was an error in the initial decision. As such, a higher-level review consists of an entirely new review of a veteran's claim by an experienced VA claim adjudicator, and the DoVA VBA has a goal to complete these higher-level reviews in an average of 125 days. Take care!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
Wow, that's some answer! Nice work.
 
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