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.

[godeep]

In all honesty, I personally feel any Veteran who is TDIU, satisfying the requirement for permanent and total, should be awarded 100%, total

I am 90% TDIU P&T with none of my individual ratings above 50%. I think this is the VA's way of getting away from SMC awards. I feel like I was lowballed on a few of my ratings, but even with increases in a number of them, I still don't reach 100%. I'm having a few more tests and will request the records and decide after reading them whether I'll file for reconsideration or not.

[RonP]

Thanks for saying it the way it is, some give a damn, some don't.

Ron Prince

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.

[rakkwarrior]

John 999

I am rescinding what I noted regarding total disability based on unemployability ratings being reduced on account of failure to return prescribed forms. I have reviewed the legislative history of the issue and the VAOGPREC Opinion 31-90 and will be writing a request for administrative review in regard to some recent practices by the VARO's. Thank you for compelling me look into this.

VA General Counsel Opinion 31-90 states, The first sentence of the current section 110 of title 38, upon whose protective provisions the veteran relies, had its origin with Pub.L. No. 83- 311 (68 Stat. 29), and became effective March 17, 1954. This act provided that:

"... a rating of total disability or permanent total disability which has been made for compensation, pension, or insurance purposes under laws administered by the Veterans Administration, and which has been continuously in force for twenty or more years shall not be reduced thereafter, except upon a showing that such

rating was based on fraud."

A review of the legislative history of this measure discloses its dual purpose: to spare a veteran the inconvenience, and the Government the expense, of repeated clinical examinations once a disability has been demonstrably static over a prolonged period of time, and, to prevent the reduction in monetary benefits upon which a veteran would understandably come to rely for support over the course of this length of time. Nowhere was this intent expressed more clearly than in the report on the proposal by the House Committee on Veterans Affairs: <br style=""> <br style="">

"The effect of the bill would be to prevent future physical examinations in the case of veterans who have had such a disability rating for 20 or more years. Under existing laws, veterans who have a total or permanent total disability rating based on conditions other than disabilities resulting from blindness or anatomical losses are apprehensive that an examination ordered at some future date may not adequately represent their true condition of health and that, as a result of such examination, a reduction in rating may cause them to lose the benefits provided for such total or permanent total disability."

Protection was extended to less than total ratings under § 110 by Pub.L. No. 445, 88th Congress (78 Stat. 464) approved August 19, 1964, which provided that:

"A disability which has been continuously rated at or above any percentage for twenty or more years for compensation purposes under laws administered by the Veterans' Administration shall not thereafter be rated at less than such percentage, except upon a showing that such rating was based on fraud."

Despite the choice of slightly different language ("Continuously rated" as opposed to "continuously in force") from that employed in Pub.L. No. 83-311 for total ratings, the legislative history of the act makes clear that the purpose for its enactment was to extend the same protection to less than total ratings, and that the same rationales for so doing applied. Hearings before the Committee on Veterans Affairs, House of Representatives, 88th Congress, Second Session, February 19, 1964; H.R.Rep. No. 1407, 88th Cong., 2d Sess. 1, 2 (1964);

S.Rep. No. 1324, 88th Cong., 2d Sess. 1, 2 (1964).

HELD:

This office is now of the opinion that section 110 of title 38 protects against reduction only those ratings for compensation purposes which have been the foundation for the payment of awards for a period of at least 20 years, such that recipients have grown to rely upon the payments and the rating authorities have had reason to monitor the level of disability for possible changes. To interpret the language requiring that ratings be "continuously in force" or that disabilities be "continuously rated" to include other than "live" disability awards for which benefits are being paid was not the intention of Congress. Congress clearly would not have countenanced the absurd results which can and have flowed from a strictly literal interpretation of §110, and such constructions are not favored when they lead to absurd results. United States v. Bryan, 339 U.S. 323 (1950); United States v. Second National Bank of North Miami, 502 F.2d 535 (5th Cir., 1974).

____________________________________________________________________________________________________________________________

This will now require me to take the aforementioned and ensure that VACO through proper channels is of the understanding that there has been a practice to attempt to reduce a 20 year protected veteran based on failure to confirm continued entitlement to TDIU for failure to furnish a VA form 21-4140. This is inconsistent with the General Counsel's holding and leads directly into the holding that such a "literal interpretation is not favored when it leads to absurd results".

Absurd is correct...again John, thank you. PTSD kept me awake tonight, but at least I have some fire power for my next round table discussion.

Edited March 21, 2011 by rakkwarrior

[WAC-Vet75]

I am 90% TDIU P&T with none of my individual ratings above 50%. I think this is the VA's way of getting away from SMC awards. I feel like I was lowballed on a few of my ratings, but even with increases in a number of them, I still don't reach 100%. I'm having a few more tests and will request the records and decide after reading them whether I'll file for reconsideration or not.

I have ratings above 50%, but unless you get a 100% schedular rating, theoretically, using the combined rating schedule 38 CFR 4.25, you can NEVER obtain a rating higher than 100%. If, you had 4(or more)- 70% ratings, they would all be combined to give you 100%, nothing more. To receive SMC, unless you meet the LOU/LO, blindness, etc., or you have ONE single 100% rating, which could be TDIU. If you never receive TDIU for any of your 4(or more)- 70% ratings, you would not be eligible for SMC(s).

This goes to the heart of this debate.... what authority (law/regulation) does the VA follow to allow ratings, in excess of 100% (0% efficiency according to 38 CFR 4.25) to continue to be combined? Basic compensation ratings are from 0-100%, rated according to average impairment of earning capacity, then combined using 38 CFR 4.25 which states "results from the consideration of the efficiency of the individual".

Some of us contend, that ratings in excess of 100% are no longer subject 38 CFR 4.25, as 1) it is physically impossible for a human being to have an efficiency less than 0%, 2) no authority (law/regulation) provides for ratings over 100% to be combined. The authority (law/regulation) cited, by VA employees, for the use of 38 CFR 4.25 is 38 CFR 3.321 General Rating Considerations. This specifically defines ratings as such, "The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. (b) Exceptional cases(1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional provison that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience." With the rating defined, we now look at 38 CFR 4.25, which specifically defines what combination ratings are, " results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity." It further goes on to give an example of exactly HOW this is done, "Thus, a person having a 60 percent disability is considered 40 percent efficient. Had they not defined disability ratings as "the average impairment in earning capacity" then define what a combined rating was, "results from the consideration of the efficiency of the individual", then there would be a good case against our contentions. With both laws/regulations giving the definition that they do (especially with the example stated in 38CFR4.25), someone with a knowledge of the English language, and basic knowledge of law, would come to the same conclusion.

I, personally, feel 38 CFR 4.25's definition with the example they give, is the most damning evidence against combining ratings in excess of 100%.

[WAC-Vet75]

Rakkwarrior.... You have gained a LOT of respect from me, I am so very impressed, bravo to you!

I had to fight a reduction,just a few years ago, 2007, due to the VA NOT sending me out that nasty form. I learned that there were many TDIU Veterans who never received their forms, that year. I find the forms to be demeaning, depressing, and not necessary, as they have access to IRS to check for employment. It's bad enough that I am not physically capable of finding a job to suit the "requirements" of my disabilities, but to be reminded each year that I am not a productive member of society, in terms of "earning capacity", SUCKS! I have been P&T for many years, there is no way in h3ll that my conditions are going to improve, and other than an accident, will be the cause of my death (which I informed them of, since they don't seem to get that part). Hopefully, in 2 years, they won't send me out that form anymore.... some how, I have a feeling that form will continue to haunt me!

BTW, ah.... if you happen to have a job available that can work around my disabilities.... I'm your woman! lmao