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 :)

[Commander Bob]

'Commander Bob 92-93,'

Please explain and give statutes that apply.

pr

pr

This still does not answer the question "Is TDIU protected under the 20 year rule???" I found this bit of interesting info while searching... I will continue to look for the statute, and post it here...

www.VeteransParty.US

Knowledge Is Power - We understand that you get frustrated when filing a claim and not knowing what they tell you, we hope this page will answer some of your questions.

<H3 style="MARGIN-TOP: 0px; MARGIN-BOTTOM: 0px">VETERAN’S CORNER By Terry Richards, Veterans Advocate & Freelance Writer © 2005 by Terry Richards. All Rights Reserved.</H3>

Rated At 100%

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 unemployability 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(:D, and 38 CFR 4.17(a) and (:).

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.

<H3 style=MARGIN-TOP: 0px; MARGIN-BOTTOM: 0px; LINE-HEIGHT: 15pt"> </H3><H3 style=MARGIN-TOP: 0px; MARGIN-BOTTOM: 0px; LINE-HEIGHT: 15pt">UNITED STATES CODE SERVICE (USCS) </H3>

CODE OF FEDERAL REGULATIONS (CFR)

==================

Edited August 17, 2009 by Commander Bob 92-93

[Pete53]

I would be very surprised to find out that TDIU was not protected after 20 years.

[Testvet]

hasn't the VA started requiring TDIU vets to file annual income statements again? I would think that if a veteran returned to full time employment for more than the allowed SSD period then they would be putting their IU status at risk why even risk having your IU status stripped? Let's please not get into the mental aspects of IU and veterans with schedular awards at 100% because as we all know to get 100% for mental issues the veterans has to be comsidered unemployable.

Why create problems when there aren't any?

[Philip Rogers]

CB 92-93, Thank you and no, I don't know the answer, which is why I asked you to post the statute. To "my" knowledge TDIU is protected, after 20 yrs, but I could be wrong. I do know that it requires 12 months of continuous successful employment to revoke.

pr

I have read many of your posts, Philip. You are one of the most knowledgeable and helpful members. So, are you just playing with me? Or, do you know the answer and want me to verify what you already know. Or, do you want me to spend the next half hour looking up some damn PDF file? I knew I should have stayed out of this one... Please prove me wrong. If a vet has been on IU for thirty years and returns to gainful employment, then the IU will be discontinued. Do you agree? On second thought, I will look up the statute. I understand, agree, and appreciate your concern for documentation.

Best wishes, and keep up the good work.

[Commander Bob]

CB 92-93, Thank you and no, I don't know the answer, which is why I asked you to post the statute. To "my" knowledge TDIU is protected, after 20 yrs, but I could be wrong. I do know that it requires 12 months of continuous successful employment to revoke.

pr

Good Morning... I was wading through warms, and inspecting iris procedures, when your post came in. I have spent some time, yesterday and this morning looking for the statute that states TDIU is protected after 20 years. My knowledge on this topic was derived by word of mouth through a VSO supervisor, now retired. When the VA opens for business this morning, I'll give them a call and get some more direction. This has turned into a challenge. I also looked in Hadit's archives, and found the question on several topics in the past. It has never been answered???? The mystery continues...

[Pete53]

Ask the other side of the question. To anyone's knowledge do we know of a single case in which TDIU was revoked after 20 years?