20 Years

[clark l namias]

:D :D :D what can i do if they reduce my rating on hearing from 50% to 40%. thank you for all your help. i applied for an increase because of my back going down real bad and a tkr also, the vso had me apply for iu in late feb do you think this can drag out till 1 nov ? and thanks again 11b/13b nam 68-69 9th id, 70-71 101st abn :D :D :)

[carlie]

Perhaps this will help.

carlie

http://www.va.gov/vetapp94/files1/9408923.txt

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO was incorrect in not

granting the benefits sought on appeal.

He maintains, in substance,that his left leg amputation is at a higher level than currently

evaluated and precludes the performance of substantially gainful

employment.

The veteran also contends that the previously assigned

100 percent evaluation based on unemployability is protected.

Therefore, a favorable determination has been requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104

(West 1991), has reviewed all of the evidence of record.

Based on a review of the relevant evidence in this matter, and for the following

reasons and bases,

it is the decision of the Board that the total evaluation based on

individual unemployability effective from

June 17, 1968, is protected, and accordingly, this benefit sought on

appeal is allowed. It is further the decision of the Board that,

given the decision regarding the protection of the total evaluation,

the issues of entitlement to an increased evaluation for a left

above-the-knee amputation and to a total evaluation based on

individual unemployability are moot and we will not further address

these issues.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of

the veteran's appeal has been obtained by the RO.

2. The veteran has been in receipt of a 100 percent evaluation based

on individual unemployability for compensation purposes for over 20

years.

CONCLUSION OF LAW

The requirements for protection of the 100 percent evaluation

effective June 17, 1968, based on individual unemployability have

been met. 38 U.S.C.A. §§ 110, 5107 (West 1991); 38 C.F.R. §§ 3.102,

3.951 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, we find that the veteran's claim is "well

grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).

Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski,

1 Vet.App. 49, 55 (1990). That is, we find that the veteran has

presented a claim which is not implausible when his contentions and

the evidence of record are viewed in the light most favorable to that

claim. We are also satisfied that all relevant facts have been

properly and sufficiently developed.

As previously indicated, the veteran's claims for an increased

evaluation for his left above-the-knee amputation and for a total

evaluation based on individual unemployability are effectively moot

by our decision that he is entitled to protection of a previously

assigned 100 percent evaluation.

The facts in this case are not in dispute. A rating decision dated

in June 1968 assigned the veteran a schedular 60 percent evaluation

for his left above-the-knee amputation and determined that he was

entitled to a 100 percent evaluation based on individual

unemployability effective June 17, 1968. The veteran did not elect

to receive VA compensation in lieu of military retirement pay until

he submitted a VA Form 21-651 (Election of Compensation in Lieu of

Retired Pay or Waiver of Retired Pay to Secure Compensation from

Veterans Administration (38 U.S.C. §§ 3104(a), 3105)) in March 1991.

The RO then promulgated a rating decision in May 1991 which

determined that the veteran was not entitled to a 100 percent

evaluation based on individual unemployability from the date of

receipt of the VA Form 21-651.

The veteran's representative has referred us to the case of

Salgado v. Brown, 4 Vet.App. 316 (1993), and we find that this case

is dispositive of the issue before us. In that case, the veteran had

been assigned a 50 percent evaluation between 1963 and 1986 but

elected to receive disability pay rather than VA compensation. The

issue before the Court was the interpretation of the phrase "for

compensation purposes" within the meaning of 38 U.S.C.A. § 110 (West

1991) and 38 C.F.R. § 3.951 (1992). The Court held that "the

protection afforded by Section 110 of Title 38 of the United States

Code applies to ratings for

compensation purposes, whether or not a veteran elects to receive a

monetary award." Salgado, 4 Vet.App. at 320. Given this Court

decision we find that the veteran's total evaluation assigned

effective June 17, 1968, is protected. There is an opinion of the VA

General Counsel to the contrary, see VA O.G.C. Pre. Op. No. 31-90, 55

Fed. Reg. 40985 (1990), which the VA relied on in Salgado to support

a position that, "for compensation purposes," referred to receipt of

monetary compensation benefits. However, the United States Court of

Veterans Appeals "is charged to 'decide all relevant questions of

law, interpret constitutional, statutory and regulatory provisions,

and determine the meaning or application of the terms of an action of

the Secretary' 38 U.S.C.A. § 7261(a)(1) (West 1991)."

The only facts distinguishable in the Salgado case and the present

case is the type of evaluation involved, a 50 percent schedular

evaluation as opposed to a 100 percent evaluation based on individual

unemployability. We find that the type of evaluation is not

significantly distinguishable to warrant a result other than that

reached in Salgado. Significantly, in that case, the Court held that

the plain language of 38 U.S.C.A. § 110 must be followed. Section

110, in pertinent part, reads as follows: "a rating of total

disability...which has been made for compensation...purposes...and

which has been continuously in force for 20 or more years, shall not

be reduced thereafter, except upon a showing that such rating was

based on fraud...." Accordingly, it is the judgment of the Board

that the total rating based on unemployability which became effective

on June 17, l968, is protected and not subject to reduction.

ORDER

The 100 percent evaluation based on individual unemployability

assigned by the June 1968 rating decision is protected, and the

benefit sought on appeal is granted.

[Philip Rogers]

Nice find, Carlie!!! That answers my question. I do recall seeing a case, some yrs back, where the claimant was TDIU and was requesting 100% and the CAVC considered the issue moot, as the claimant was already TDIU and there were no additional benefits w/100%, to be gained. I disagree but it's nothing I have to worry about. Thanks again!

pr

Perhaps this will help.

carlie

http://www.va.gov/vetapp94/files1/9408923.txt

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO was incorrect in not

granting the benefits sought on appeal.

He maintains, in substance,that his left leg amputation is at a higher level than currently

evaluated and precludes the performance of substantially gainful

employment.

The veteran also contends that the previously assigned

100 percent evaluation based on unemployability is protected.

Therefore, a favorable determination has been requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104

(West 1991), has reviewed all of the evidence of record.

Based on a review of the relevant evidence in this matter, and for the following

reasons and bases,

it is the decision of the Board that the total evaluation based on

individual unemployability effective from

June 17, 1968, is protected, and accordingly, this benefit sought on

appeal is allowed. It is further the decision of the Board that,

given the decision regarding the protection of the total evaluation,

the issues of entitlement to an increased evaluation for a left

above-the-knee amputation and to a total evaluation based on

individual unemployability are moot and we will not further address

these issues.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of

the veteran's appeal has been obtained by the RO.

2. The veteran has been in receipt of a 100 percent evaluation based

on individual unemployability for compensation purposes for over 20

years.

CONCLUSION OF LAW

The requirements for protection of the 100 percent evaluation

effective June 17, 1968, based on individual unemployability have

been met. 38 U.S.C.A. §§ 110, 5107 (West 1991); 38 C.F.R. §§ 3.102,

3.951 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, we find that the veteran's claim is "well

grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).

Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski,

1 Vet.App. 49, 55 (1990). That is, we find that the veteran has

presented a claim which is not implausible when his contentions and

the evidence of record are viewed in the light most favorable to that

claim. We are also satisfied that all relevant facts have been

properly and sufficiently developed.

As previously indicated, the veteran's claims for an increased

evaluation for his left above-the-knee amputation and for a total

evaluation based on individual unemployability are effectively moot

by our decision that he is entitled to protection of a previously

assigned 100 percent evaluation.

The facts in this case are not in dispute. A rating decision dated

in June 1968 assigned the veteran a schedular 60 percent evaluation

for his left above-the-knee amputation and determined that he was

entitled to a 100 percent evaluation based on individual

unemployability effective June 17, 1968. The veteran did not elect

to receive VA compensation in lieu of military retirement pay until

he submitted a VA Form 21-651 (Election of Compensation in Lieu of

Retired Pay or Waiver of Retired Pay to Secure Compensation from

Veterans Administration (38 U.S.C. §§ 3104(a), 3105)) in March 1991.

The RO then promulgated a rating decision in May 1991 which

determined that the veteran was not entitled to a 100 percent

evaluation based on individual unemployability from the date of

receipt of the VA Form 21-651.

The veteran's representative has referred us to the case of

Salgado v. Brown, 4 Vet.App. 316 (1993), and we find that this case

is dispositive of the issue before us. In that case, the veteran had

been assigned a 50 percent evaluation between 1963 and 1986 but

elected to receive disability pay rather than VA compensation. The

issue before the Court was the interpretation of the phrase "for

compensation purposes" within the meaning of 38 U.S.C.A. § 110 (West

1991) and 38 C.F.R. § 3.951 (1992). The Court held that "the

protection afforded by Section 110 of Title 38 of the United States

Code applies to ratings for

compensation purposes, whether or not a veteran elects to receive a

monetary award." Salgado, 4 Vet.App. at 320. Given this Court

decision we find that the veteran's total evaluation assigned

effective June 17, 1968, is protected. There is an opinion of the VA

General Counsel to the contrary, see VA O.G.C. Pre. Op. No. 31-90, 55

Fed. Reg. 40985 (1990), which the VA relied on in Salgado to support

a position that, "for compensation purposes," referred to receipt of

monetary compensation benefits. However, the United States Court of

Veterans Appeals "is charged to 'decide all relevant questions of

law, interpret constitutional, statutory and regulatory provisions,

and determine the meaning or application of the terms of an action of

the Secretary' 38 U.S.C.A. § 7261(a)(1) (West 1991)."

The only facts distinguishable in the Salgado case and the present

case is the type of evaluation involved, a 50 percent schedular

evaluation as opposed to a 100 percent evaluation based on individual

unemployability. We find that the type of evaluation is not

significantly distinguishable to warrant a result other than that

reached in Salgado. Significantly, in that case, the Court held that

the plain language of 38 U.S.C.A. § 110 must be followed. Section

110, in pertinent part, reads as follows: "a rating of total

disability...which has been made for compensation...purposes...and

which has been continuously in force for 20 or more years, shall not

be reduced thereafter, except upon a showing that such rating was

based on fraud...." Accordingly, it is the judgment of the Board

that the total rating based on unemployability which became effective

on June 17, l968, is protected and not subject to reduction.

ORDER

The 100 percent evaluation based on individual unemployability

assigned by the June 1968 rating decision is protected, and the

benefit sought on appeal is granted.

[Commander Bob]

Perhaps this will help.

carlie

http://www.va.gov/vetapp94/files1/9408923.txt

Thanks carlie. This answers the question to the extent that if the veteran remains unemployed. After 20 years the veteran no longer has to fill out a 21-4140, and is protected as long as the vet does not work. However if the vet returns to gainful employment, I contend ( verfied by a VA rater on the phone, this morning ), that the vet will lose the IU rating and be reduced to the schedular rating. If the vet goes back to work after the 20 year protection date, then the fraud clause kicks in.

A careful reading of the BVA ruling you cited mentions the following... "except upon a showing that such a rating was based on fraud".

IMHO,...100% beats out TDIU in many ways...

P.S. I'll keep looking for the the statute...

Edited August 17, 2009 by Commander Bob 92-93

[Pete53]

Why would anyone who had been 100% go back to work after 20 years?

[WHOLESALE]

Did you have a recent exam? If not they would schedule you an exam first before they would even consider reducing your rating.

frank

:D :) :) what can i do if they reduce my rating on hearing from 50% to 40%. thank you for all your help. i applied for an increase because of my back going down real bad and a tkr also, the vso had me apply for iu in late feb do you think this can drag out till 1 nov ? and thanks again 11b/13b nam 68-69 9th id, 70-71 101st abn B) :) :)

[Commander Bob]

Why would anyone who had been 100% go back to work after 20 years?

I agree Pete... However, "Ours is not to wonder why".... My guess is more money or pride, or "...life, liberty and the pursuit of happiness..." Be that as it may, 20 year protection for TDIU just means that the VA cannot reduce you unless you go back to work. It's protection of sorts, however, the ball and chain that accompanies IU, is still around the vet's neck. If the vet tries to fulfill their dreams of a better life and goes out there and tries and tries again. ( for over one year ), the IU will be yanked and then what? The vet has to start the claims process over, with new evidence. How long do you think it would take to regain the TDIU?

A closer look at the "plain language" of 38 USCA - 110...

( carlie's BVA citation )... Significantly, in that case, the Court held that

the plain language of 38 U.S.C.A. § 110 must be followed. Section

110, in pertinent part, reads as follows: "a rating of total

disability...which has been made for compensation...purposes...and

which has been continuously in force for 20 or more years, shall not

be reduced thereafter, except upon a showing that such rating was

based on fraud...."

Edited August 17, 2009 by Commander Bob 92-93