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…

by Terry Richards

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 Ratingshall be synonymous.

Additionally the termsAssigned” 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 theaverage 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 thingsSee 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 $1038 per month in 2013 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-scheduler ratings.”  See 38 CFR 4.16(b), and 38 CFR 4.17(a) and (b).

The extra-schedular ratingrule 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 10-years ago or so, 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.