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THE DIFFERENCES BETWEEN BEING “RATED” AT 100% AND BEING “ASSIGNED” 100% TDIU

Rated 100% vs 100% TDIU

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 CFR. 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 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 in 2010 is $985 per month 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.

UNITED STATES CODE SERVICE (USCS)
http://www4.law.cornell.edu/uscode/

CODE OF FEDERAL REGULATIONS (CFR)
http://www4.law.cornell.edu/cfr/

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Posted by on April 24, 2010, With 0 Reads, Filed under Medical & Health. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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11 Responses to "THE DIFFERENCES BETWEEN BEING “RATED” AT 100% AND BEING “ASSIGNED” 100% TDIU"

  1. freesoft  May 18, 2010 at 4:40 pm

    Thank you..really informative!!

  2. Musashi  April 27, 2010 at 12:11 pm

    Very informative and easy to understand. Good Stuff Terry! Thank you!

  3. Tom Dillman  April 25, 2010 at 5:59 pm

    Thank you Terry.

    Tom, Texas Vet, First Cav

  4. barrie w.  April 25, 2010 at 12:34 pm

    excellent. i will forward to the guys still working claims that i know of. and to others nervous about their their rating.

  5. Corey K  April 25, 2010 at 10:54 am

    Good article Terry!!! You and G. Duff seem to hit the nail on the head EVERY time!!! Semper Fi!!

  6. Sp/4 Dusty Roads  April 24, 2010 at 9:08 pm

    Your information correct, BUT All things considered it is always better to leave the V.A. out of the equasion when being evualated on T.D.R.L. ” Leave them out for 5 years and a day. Our Veterans Affairs system is a negative minipulator of all activity duty pesonnal under evualation, I say this because the V.A. is a bridge between our civilian system and the D.O.D. after all no government wants some one to get more then “IT” presumes ( as a term) named “substintal”.

  7. Robert  April 24, 2010 at 5:01 pm

    Good article,as usual, Terry…
    As a Combat Veteran myself and jumping through hoops for the VA for almost 10 years now… I finally hired a lawyer to help me get through the VA process..
    I have been 40% service connected for all this time for PTSD and hearing loss in my left ear, I also have had 3 heart attacks since 1998, and other heart complications through the years… I’m on SSDI with a total disability, but it took the VA over 8 years and two hearings to finally give me a service connected rateing for my cardio, but with a 10% reating with no increase in my overall rateing.. I have appealed the 30% PTSD rate twice, whith no results, and now also have an appeal in for the cardio rating… Now that my cardio is included in Agent Orange,I made up my mind to hire a lawyer, which was no easy task finding one that would take on the VA. I got tired of dealing with the bone heads in the Los Angeles office on my own…
    Reading your articles has helped me realize why it’s taking so long for the VA, and why they make Veterans jump through hoops.. They seem to be a corrupt group of people and something really needs to be done about the this once and for all….
    The problems they face will not get better or go away any time soon, enough trying to screw over the Veterans, with budgets and legal crap, and just do what is right and just…
    Thank you again for keeping the Veterans of this great country informed…

    • Judy  May 8, 2010 at 11:33 am

      My husband is a USMC Vietnam veteran who applied for Disability benefits through the VA in June 2006 after a another veteran suggested we do so. Previous to this, my husband had extensive medical conditions which prevented him from working, was debilitating and frustrating. There was never any questions where all these illnesses came from, we just thought it was blamed on getting old. At the time, all our insurance premiums and doctors were of the private sector so we had no association to the VA for this other than filling prescription medications. Our application process for benefits (C&P), reward and appeal was nearly not as lenghty as yours and others, but it was not without pain. We petitioned our state senator to help us in whatever capacity they could provide. I know politicians are a sore subject, but it was cost efficient to us under the circumstances. By November 2006, we had our first award from the VA which was an utter kick in the face. Frustrated even more, my husband began to shut down. So he allowed me to handle the appeal. I read the documents, supplied more medical records than already had been sent along with a statement from my husband personally on his wartime experience. Because there were no survivors from his battalion other than himself, because his medical condition didn’t allow him to remember the details or he had blocked them out because of the painful experience he had, I needed to find a way to help him retrace his Vietnam Tour to the note. Thankfully with the help of the internet and the strength of other Vietnam Veterans who complied information and published it on the web, I was able to help my husband in a positive way to put the missing pieces from the puzzle together. It took until January 2007 for us to accomplish the statement for appeal together. Through this time, I also was able to talk with my husband’s VA rep on a regular basis. My husband’s award was made 6 weeks later. It was astounding. We are so gratful and blessed.

      My husband is Pete. He was a tunnelrat in Vietnam for the USMC. He went over and above for his commrades in the line of duty. He was wounded but didn’t not let this hinder his duty to his men. He honored his country and he is the strongest man I know. When he was finally placed on the hospital ship Repose he was to be given a Purple Heart. He said he would only accept it if it would bring his fellow soldiers back.

      Don’t give up, find someone who can help you. I was honored to have helped Pete. Today he is living proof of a success story. This doesn’t lessen the experience nor take it away but it proves you can survive. We all need someone to help us so I pray you will find the help you need to see your award through.

      • Dee Level  May 31, 2010 at 12:50 pm

        This is a great story! The VA need to do the same for the other veterans
        who are still waiting have 20 years.

        Dee
        ATL

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