tdiu Smcers Pr,john,chulai,rakk Etc

[Berta]

I found this case while answering a post by Chu Lai.

"Additionally, while the total disability requirement must be met

by a single disability, the 60 percent requirement may be met by

applying the combined rating of the Veteran's remaining

disabilities. See Bradley v. Peake, 22 Vet. App.

280 (2008) (noting that "combined ratings to satisfy the second

requirement but not the first"). "

http://www4.va.gov/vetapp10/files3/1026621.txt

Maybe someone else has found this by now-and this case obviously is after Bradley decision.

Are they saying if you have 100% and not TDIU then the VA can combine additional SC to meet the 60 for the 100% plus 60 SC "S" award?

Since the premise of TDIU says Total disability due to individual unemployabilty-should TDIU vets file for and request 100% instead of the TDIU?

Would that make sense?

I have always had the feeling that SMC can be manipulated by the VA to their favor-

and maybe the key to that is in fact that many TDIU vets should be 100% vets but as long as they are deemed TDIU they would need qualify for additional independent 60% SC for "S" unless they can meet the housebound requirements for "S" instead.

[john999]

Wac

You know after a 20 years a TDIU vet could go back to work. His TDIU can't be touched. By that time I will be 71 years old so it won't matter to me. I won't be launching a new career at 71.

[Chu Lai69]

I said

"I found this case while answering a post by Chu Lai." It is in another forum here.

Rakk isn't messing with you at all. BLAME ME.

I think this topic is getting too emotional and should be closed.

I am satisfied with the info Rakk and Chu Lai posted as it makes sense to me and I have nothing else to say on this subject.

If I find the other post I referred to I will put the hadit link here.I forgot what forum it was in.

This SMC S rigamorale has turned into a pissing contest.

Thanks again Berta for your opinions on this matter. Did not mean to create a pissing match?? Just a question and you and a couple others gave great opinions. Will def let you know how this unfolds.

[WAC-Vet75]

Wac

You know after a 20 years a TDIU vet could go back to work. His TDIU can't be touched. By that time I will be 71 years old so it won't matter to me. I won't be launching a new career at 71.

Wow, I have two years to go.... then, if I can find a job, that I can do at home, when I'm able to actually work (due to other conditions), that doesn't have any time constraints to it, isn't stressful, I'll have it made! Wonder if I can get overtime, bonus', 401K plan?

[rakkwarrior]

Regarding Pension and schedular requirements under 4.16(a):

§4.17 Total disability ratings for pension based on unemployability and age of the individual.

All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability.

While pension and Bradley v. Peake (2008) have no relation, the percentage requirements needed to obtain a total disability rating for pension purposes is equally requisite. All issues under either program are to be computed under §4.25.

In regard to protected Ratings, under Title 38 C.F.R. §3.951 Preservation of disability ratings.

(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. (Authority: 38 U.S.C. 110)

This protection applies to conditions which have been rated as an schedular evaluation of disability, not additional entitlements such as dependency, TDIU, or other provisions providing an evaluation in excess of the schedular evaluation. We have vigorously prosecuted this issue in the past, and protection extends only to schedular evaluations.

I don't agree with this interpretation, but unless the Court opines otherwise, it stands. Mind you it's easier to obtain a continued evaluation than to take the reduction and fight it to CAVC for a precedent setting opinion. Many of our arguments on the issue stem from the veteran's failure to return a VA form 21-4140 which is routinely required to maintain a TDIU rating, even if rated as P&T for 20 years or more. The Secretary's authority to require periodic findings of continued eligibility stems from Title 38 C.F.R. 3.652(a)

"Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist."

This legal requirement is effected and enforced under Title 38 C.F.R. §3.501(f)

"

Employment questionnaire, failure to return

. Reduce award to the amount payable for the schedular evaluation shown in the current rating as of the day following the date of last payment."

Edited March 20, 2011 by rakkwarrior

[john999]

I am not convinced by what you have stated. Others have stated the opposite about 20 years and TDIU. The regulations you paraphrase could apply to any veteran even someone 90 years old on their deathbed.

[rakkwarrior]

John999

You don't have to be convinced with what I stated, many people aren't. I went into work today for about 6 hours, not on OT to write legal briefs for veterans whose cases will be going to the Board of Veterans' Appeals (BVA), three of the five listened to us and have an excellent chance of seeing their cases overturned, the others thought they knew what they are doing and were just a bunch of "lazy dolts who don't do anything but push paper for them". Their briefs were written by us in detail regardless of their opinions, we set our personal opinions aside in the best interest of those we served with, those who came before us, and those who continue to serve.

My discussions here are not for inflammatory effect, rather I think if I can educate those interested in helping themselves and others then maybe I can be of benefit to those outside of my office, and outside of those I train in VA Law and Regulations as professional attorneys-in-fact. Again, you don't have to be convinced, but I thought I would bring these legal provisions to light.