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THE DIFFERENCES BETWEEN BEING “RATED” AT 100% AND BEING “ASSIGNED” 100% TDIU · IS THERE A DIFFERENCE BETWEEN BEING “RATED” AT 100% AND BEING “ASSIGNED” 100% TDIU (Total Disability based on Individual Un-employability) 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 that 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 un-employability of the individual Veteran a/k/a 100% TDIU (Total Disability based upon Individual Un-employability) 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.”
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/
Yours in Service,
Chuck Weber Registered Veterans Service Officer
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