HadIt.com Elder Wings Posted March 31, 2008 HadIt.com Elder Share Posted March 31, 2008 (edited) PRESS RELEASE Tuesday, July 26, 2005 VETERAN’S CORNER By Terry Richards Veterans Advocate & Freelance Writer Copyright ã 2005 by Terry Richards. All Rights Reserved. IS THERE A DIFFERENCE BETWEEN BEING “RATED” AT 100% AND BEING “ASSIGNED” 100% TDIU BY THE VA? + ARE VETERANS PERMITTED TO WORK WHEN “RATED” OR “ASSIGNED” 100% VA DISABILITY COMPENSATION? + IS IT TRUE THAT A PERMANENT & TOTAL VA DISABILITY RATING IS NOT PERMANENT UNTIL AFTER 20-YEARS OR MORE? + IS A VETERAN PERMITTED TO EARN ANY KIND OF INCOME DURING THE PERIOD HE APPLIES FOR 100% TDIU? You may be surprised but the answer to all four (4) questions is YES… When reading the rest of this Article, please keep in mind that pursuant to VA laws, rules and regulations, a “100% Disability Rating” and a VA “Total Disability Rating” shall be synonymous. Additionally the terms “Assigned” and “Awarded” as it pertains to 100% TDIU shall be synonymous. When a Veteran has been “rated” with a service-connected disability from 10% to 100% it means that the Veteran has received a “schedular rating” from the VA’s “Schedule For Rating Disabilities” found in 38 U.S.C. Section 4.1 et seq., (et seq means - all that follows) which sets forth with particularity how much the VA must compensate the Veteran for their particular service-connected injuries and/or diseases. Moreover, Veterans “rated” at 100% can work full or part-time with no limit as to how much they can earn and still be eligible to receive their 100% monthly VA compensation check. The reason work is permitted is because the percentage of ratings represents as far as can practicably be determined the “average impairment in earning capacity” resulting from such diseases and injuries and their residual conditions in civil occupations, as well as to compensate Veterans for pain and suffering throughout their lifetime, among other things. See 38 CFR Section 4.15. To further help you understand why a Veteran is permitted to perform Substantial Gainful Activity (SGA) while being “rated” 100% service-connected by the VA, is by placing an emphasis on “average impairment in earning capacity,” as opposed to being compensated for the average “total loses” in earning capacity over a lifetime. Furthermore, Black’s Law Dictionary Seventh Edition defines “impairment” as: “The fact or state of being damaged, weakened or diminished.” And it defines “compensation” as: ”Payment for damages, or any other act that a court orders to be done by a person who has caused injury to another and must therefore make the other whole.” However, total disability ratings for compensation based on umemployability of the individual Veteran a/k/a 100% TDIU (Total Disability based upon Individual Unemployability) may be “assigned” where the “schedular rating” is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities as opposed to the percentage of ratings representing the “average impairment in earning capacity.” Veterans who have been “awarded” 100% TDIU can only earn up to the MAPR (Maximum Annual Pension Rate) which is currently $846 per month or $10,152 Annually and still be eligible to receive their 100% TDIU monthly VA compensation check. See 38 CFR Section 4.16(a) for details. Veterans should keep in mind that all injuries or diseases for which a Veteran receives service-connected disability compensation regardless of percentage, can be “re-evaluated” at any time. Additionally, pursuant to 38 USCS Section 110 – Preservation of Disability Ratings states in pertinent part that: A rating of “total disability” or “permanent total disability” which has been continuously in force for twenty or more years shall not be reduced thereafter, except upon showing that such rating was based on fraud.” In layman’s terms this means that even though you might have been furnished with a letter from the VA that states your “disability” is “permanent total disability,” unless you’ve actually received permanent and total disability for 20-years or more, the VA can re-evaluate your claim at any time and reduce your percentage of VA disability compensation. Furthermore, all Veterans should duly note that a Veteran with absolutely “no rating” whatsoever at the time the Veteran applies for VA disability compensation can still be Granted and “rated” with a 100% “schedular rating.” This is also true in the case of 100% TDIU or a Non-Service Connected Disability Pension based upon what the VA calls “extra-schedular ratings.” See 38 CFR 4.16(b), and 38 CFR 4.17(a) and (b). The “extra-schedular rating” rule will lay to rest the “myth” that the only way a Veteran can obtain 100% TDIU is if the Veteran has at least one disability rated at 40% or more, and sufficient additional disabilities to bring the combined rating to 70% or more. About 4-years ago, a Veteran was referred to me for assistance. He had been rated at 70% for many years but then eventually was “awarded” 100% TDIU which he had been collecting for a couple of years. He showed me a letter from the VA saying that records they received from the IRS and Social Security Administration reflected that the Veteran had been working for about 4-months during the period he applied for a “Total Disability Rating”, and therefore, the VA was going to revoke his 100% TDIU and return him to 70% service-connected compensation, unless he could site a legal reason why the VA should not. So I researched 38 CFR (Code of Federal Regulations) and 38 USCS (United States Code Service) and found the legal reason why the VA could not revoke his “Total Disability Rating.” The legal reason why the VA could not revoke his “Total Disability Rating” lies in 38 USCS Section 1163, of which I paraphrase as follows: “The disability rating of a Veteran who begins to engage in a substantial gainful occupation after January 31, 1985, may not be reduced on the basis of the Veteran having secured and followed a substantially gainful occupation unless the Veteran maintains such an occupation for 12 consecutive months. Contact Terry Richards · veteranscorner@yahoo.com Edited March 31, 2008 by Wings Link to comment Share on other sites More sharing options...
HadIt.com Elder Wings Posted March 31, 2008 HadIt.com Elder Share Posted March 31, 2008 (edited) x x x 4.15 Total disability ratings. 4.16 Total disability ratings for compensation based on unemployability of the individual. 4.17 Total disability ratings for pension based on unemployability and age of the individual. 4.18 Unemployability. http://www.access.gpo.gov/nara/cfr/waisidx_04/38cfr4_04.html Edited March 31, 2008 by Wings Link to comment Share on other sites More sharing options...
carlie Posted March 31, 2008 Share Posted March 31, 2008 kris, I'am really glad this worked out for you. carlie Link to comment Share on other sites More sharing options...
kris Posted March 31, 2008 Author Share Posted March 31, 2008 None of this really hit me until I read your posts. I just sobbed like a baby. You guys and gals on hadit are also the one that told me to file for SSD. I am sure you have been told this many times but for this veteran you help save my life and I mean that. The depression and memories that come along with the claims process were sometimes more than I could bare. It's important to know that you have veteran brothers and sisters that not only understand what your going through but do the thinking for you when you can't. Heck, you have even done the work for me when I didn't understand or I couldn't wrap my mind around what you trying to explain to me. And your still doing it. Thanks for having my back Kris Link to comment Share on other sites More sharing options...
HadIt.com Elder Pete53 Posted March 31, 2008 HadIt.com Elder Share Posted March 31, 2008 Kris: I am very happy that your claim ended up the way you wanted. It also offers some vindication for taking this journey and the fact that the US Government will in all likelihood pay you every month till you die you have secured yourself a decent check or as I tell people who ask me a Government Retirement that offers good benefits. I am hoping that you can relax and enjoy your victory and in some small way know that the Military although not apologizing is taking responsibility. Sorry if I rambled I am a little tired but so happy to see your Victory. If you do not already have SSD show them your award letter from VA. Many on Hadit offer the suggestion to new members to make sure to file for SSD and VA. My first SO told me that I should file for SSD and I try to remember to tell others the same. Hang out here with us on Hadit and help T Bird and her merry band help other Veterans Link to comment Share on other sites More sharing options...
HadIt.com Elder cowgirl Posted April 1, 2008 HadIt.com Elder Share Posted April 1, 2008 Kris, good for you getting your due. No it shouldnt have taken this long, but the military that promised to take care of you, did not. You and your VSO did, self advocate! Tdiu for your sc issues is proper and I wonder if you deserve a earlier EED. Yes, of course there is so much to each story, yes Women are veterans too. So many WWII women veterans are just now learning that, yikes! How many times I've been asked if I was a secretary or cook has been amazing. HAve you noticed that military veteran hats and jackets are all mens 'baseball' style? I'm not sure what I'd wear exactly, but dont prefer hat hair! Bless you for sharing your story with us, cg Link to comment Share on other sites More sharing options...
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