Read the BLOG POST here.
In the VIDEO, our expert attorneys discuss…
- What is Permanent and Total (P&T) Disability status?
- Disabilities that automatically receive P&T status and disabilities that are less likely to be deemed Permanent and Total (including temporary total disability)
- How to and where to find out if your disability is considered permanent and total by the VA
- If you receive TDIU (VA Unemployability), are you considered permanent and total? please excuse our frozen image during this section
- Can you ask the VA to make your rating permanent? How? please excuse our frozen image during this section
- Which additional benefits do veterans with P&T status have access to?
- Dependency and Indemnity Compensation (DIC) and total ratings
- Even without Perm & Total status, veterans who have been rated at the same level for many years may have certain protections from VA rating reductions
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Jonathan: Good afternoon. I’m Jonathan Greene with the law firm Chisholm Chisholm & Kilpatrick. With me today is Jenna Zellmer and Courtney Ross. We’re going to be talking about permanent and total disability. I’d like to pause for a second to let our audience catch up and join us. Okay. Welcome back. Again, I’m Jonathan Greene with Chisholm Chisholm & Kilpatrick. And with me is Jenna Zellmer and Courtney Ross. We’re going to be talking about permanent and total disability. So Jenna, what is permanent and total disability?
Jenna: Thanks, Jon. So, there are two aspects of permanent and total disability. Total refers to VA considering you totally disabled or 100% disabled. So, that means that your service-connected disabilities are totally disabling. So, you should be being paid at the 100% rate. Permanent, on the other hand means that that total 100% rating would be protected. So, basically VA is never going to schedule you for another exam. They’re never going to propose you to be reduced to something below 100%.
Jonathan: So, this is like a status to obtain. It’s not just the 100% rating but then also to be determined.
Jonathan: And we are going to be talking about the implications of– and the benefits that come with permanent and total disability. So Courtney, are there any disabilities that automatically receive this permanent and total disability status?
Courtney: Yes. Thank you, Jon. There are- so, there’s a few different disabilities that are actually specifically listed in the regulation that are automatically granted the permanent and total status. This includes irreversible loss or loss of use of both upper extremities, both lower extremities. You could also have one upper extremity and one lower extremity. You can have loss of sight in both eyes. These are just a few examples of disabilities that are automatically granted that P&T status.
Jonathan: And what about on the other side, disabilities that are less likely to get this status, Jenna?
Jenna: Yes. So, sometimes a veteran will be hospitalized for a certain amount of days due to a service-connected disability. You’ll often– the veteran will often get a 100% rating for that hospitalization but that is not a permanent rating. So, you’ll often hear the veteran will get a temporary total rating or a total rating based on convalescence. So, anything that you’re hospitalized for, that’s not going to be hospitalized for a specific period of time, that’s not going to be permanent. And then also, VA often will consider mental health disorders to be possible– they’ll have a possibility of improving and so– especially with treatment and so those are often not considered permanent. And then of course, cancers. So, often if you are service connected for cancer, you’ll get a temporary 100% rating based on when that cancer is active. But if it goes into remission, then that 100% rating will go away.
Jonathan: So it seems that to get the T, the total disability rating is pretty clear. It’s pretty black and white. To get the P, it’s going to depend on whether they deem it to be something that is, as you said, likely to improve which is why it makes sense that the loss or loss of use, that’s probably not going to improve, obviously, but whether a cancer is active or not, can change. And then as you said hospitalizations, that’s temporary. So, they will get the T, but not the P. So, now I’ve looked at a lot of rating decisions and I know that not all rating decisions are the same and not all the information is located always in the same place. So, where do– how do you find out whether you’re considered permanent and total? Courtney?
Courtney: Sure. So, when you get a rating decision, there’s a few places you can look in the decision. One is on the actual Notice of Action letter. Sometimes it’ll specifically state for you that you have been found permanently and totally disabled. Other times, you’ll have to look for other clues to make you aware that the VA has granted you this benefit because they don’t always specifically state that. So, a few other things you can look for are language where the VA states that no further VA examinations are going to be scheduled for this disability. That’s an indicator that they found you permanently and totally disabled. Another indication is if they grant you Dependents Educational Assistance. That benefit is only granted to veterans who have been found permanently and totally disabled. So, that’s another indicator that you have been granted that status. In addition to the Notice of Action letter, you can also look on the code sheet that comes along with the rating decision. It’s not always indicated on a box within that part of the decision, but often times it’ll specifically state it on the code sheet as well.
Jonathan: And so, just so folks know, when we’re talking about the rating decision, we consider the rating decision to be in three parts. There’s the Notice of Action letter, which looks like, kind of like a cover letter. It’s in more traditional letter form. It does contain a lot of good information including what the veteran will be paid at. The narrative, which is the second part, which includes sort of the body of the decision itself and then, lastly, is the code sheet, which is a breakdown of what conditions are service connected, what they’re rated at. Lots of good information in the code sheet. And by the way, you can find a lot of this information on our website, cck-law.com. We have a lot of blog posts about various topics that we’re kind of touching on today. So, if you qualify for TDIU and by TDIU, we mean a total disability rating based on individual unemployability, does that mean that your rating is permanent and total, Jenna?
Jenna: Not automatically. No, Jon. So, TDIU is relevant to the first part of permanent and total or, excuse me, the second part, total. Not permanent. So, a lot of times, you know, VA will still consider- schedule veterans for updated exams to determine whether or not the underlying service-connected disabilities that were the basis for TDIU are still that severe. And so, if there’s an indication that the veteran may be able to work, the VA can start the process for taking TDIU away. Now, the VA is going to have to demonstrate that you are actually capable of employment. And so, VA can’t just turn around one day and take it away. It’s going to have to go through some procedures and you can obviously always disagree with VA if they decide to take away your TDIU. But just because you’re granted TDIU, does not automatically mean that that IU is permanent.
Jonathan: And we know that just by the nature of how they treat TDIU that they oftentimes require the form, the 4140, annually to show that you are, in fact, not working or the kind of special considerations you’re getting at work. So, it seems as though they don’t treat it as permanent and although it is definitely total. So, are you able to get the 100% disability rating and then ask VA to make your rating permanent, Courtney?
Courtney: Yes. You certainly can. What you would want to do is submit a letter to VA asking them to do it. But with your letter, you’d want to submit medical evidence that supports that your condition is unlikely to have any kind of significant improvement and that level of impairment is likely to continue for your lifetime.
Jonathan: So, you want the medical expert provider to say this condition is unlikely to improve.
Jonathan: Okay. So, why is this important? Let’s talk about some of the advantages of having a permanent and total rating. So, are the veterans who are deemed permanent and total, do they get additional benefits, Jenna
Jenna: Yes. So, Courtney touched on this before when she mentioned Dependents Educational Assistance. So, that program is only applied to veterans who have a permanent and total rating. And so, what that means is that veterans who are permanent and total can receive additional educational benefits and money that goes towards their dependents’ education. So, a permanent and total rated veteran has children or a spouse or someone who wants to go back to school, they can have this additional benefit and then they also have access to CHAMPVA, which is VA health care for their dependents. And so, as veterans, you have access to VA’s health care. But if you’re a permanent and total disabled veteran, then you also get VA health care for your dependents.
Jonathan: So, going back to the Chapter 35, oftentimes in the rating decision narrative part, you will see listed as one of the issues, entitlement to Chapter 35 benefits. And that’s usually the indication that, okay, they’re found permanent and total. So, they– as Jenna said, CHAMPVA and the Chapter 35 benefits, they require that they’re currently rated permanent and total. We would like to touch on dependency and indemnity compensation and how getting the total rating for a period of time can come into play there. Do you want to walk us through that, Courtney?
Courtney: Sure. So, in order to get the dependency and indemnity compensation, one way to be entitled to it is to be granted a total rating for 10 years preceding a veteran’s death. However, while the regulations don’t specifically require you to be permanent and total, usually if you’re rated total for a period of the 10 years, VA is supposed to presume the permanent part of it. So, that’s how being that permanent and total for that 10 years would get you to the DIC benefit.
Jonathan: And even though the statute 1318, dealing with dependency and indemnity compensation doesn’t say anything about permanent. It is in the manual, correct?
Courtney: Yes. The manual instructs the VA employees to assume that if the veteran has that 10-year period where they’ve been granted the total rating, that they should be presumed to be permanent as well.
Jonathan: Okay. So, it’s important to keep in mind when you’re considering filing additional claims and you have this permanent and total rating sort of what can be some of the implications of chasing after things. And one of which is when you get that permanent and total status, VA is sort of telling you that they’re not going to go chasing you down, sending you for compensation and pension exams which could result in proposals to reduce and open the door for VA to kind of get in there and take away that permanent and total status. So, we have a question from our audience, from John, saying, when I got my rating, it didn’t say I was permanent and total. But when I generated a VA letter from e-benefits it stated I was T&P, meaning permanent and total. But then I was reduced. Can VA do that? Well–
Jenna: They shouldn’t.
Jonathan: Yes, they can. It kind of depends on what happened there. VA — if you’re permanent and total, it doesn’t mean that you have sort of this impenetrable shield against reductions. What it does mean is they are not going to–
Jenna: Go out of their way.
Jonathan: Go out of their way to schedule you for a compensation and pension exam just to make sure that your condition is still that severe to be rated totally disabling. Which is why we often encourage some of our clients who have reached this permanent and total status, that if they have outstanding claims pending they might want to consider withdrawing those claims if they’re unlikely to result in additional compensation in the form of, for example, special monthly compensation or an earlier effective date. And the reason for that is because by having these outstanding claims pending, VA, in order to develop the claim, might be scheduling them for a compensation and pension exam which could result in them deeming a condition less severe than they had previously thought it was. So, as far as John’s question goes, yes, they can do that. But if you are rated permanently and totally disabled and you don’t have outstanding claims, then they shouldn’t really have any reason to find out that your condition has become less severe or not. Did you guys have anything to add to that?
Courtney: No, I think that covers it.
Jonathan: Okay. But while we are talking about protection because there is some protection with the permanent and total rating, can– Jenna, would you like to talk about some other protections that come about through the age of the disability rating?
Jenna: So, you mean for cases that aren’t necessarily deemed permanent?
Jenna: Right. So, we’ve actually– we also have a lot of blog posts on rating reductions as well and so, basically what Jon is touching on is, when can VA reduce your rating? And the first step is when you have a stable rating, that means that your service-connected disability has been rated at the same percentage for a period of five years or more, VA can reduce that but they have a higher burden. So, they need to show that there actually has been sustained improvement in your service-connected disability and they can’t just use one examination to determine that there’s been an improvement. So, a lot of times veterans will go in for one exam, maybe that day, they took a shot that helped their range of motion or maybe they weren’t experiencing as severe symptoms as they normally do. And then VA will use that one exam to try to establish that a rating reduction is warranted. So, they can’t do that if your service-connected disability has been rated for five years or more at the same pace.
Jonathan: What about going a little bit further. What if they have 20 years at the same rating?
Jenna: So, it’s just even more or do you want to talk about it?
Courtney: Sure. So at the 20-year mark, you get a little bit more protection. And so kind of piggybacking off of what Jenna said, at the 20-year mark if you’ve had a service-connected disability that you’ve been rated for at or a specific rating or at higher than that rating, VA is protected that in the terms that VA cannot reduce below the lowest rating. So, just to give this some context, I’ll give you an example. Let’s say a veteran’s service connected for PTSD at 50% initially, he’s later granted an increase to 70%. The VA now wants to reduce the veteran to 30%. If the veteran has been rated at that 50 and 70 for the 20-year period, VA could only reduce to 50% at a maximum.
Jonathan: And what about if you have the total disability rating but not a permanent disability rating? As we said before, if you have the both, if you have the permanent and the total, then VA isn’t going to go looking for reasons to reduce by scheduling you for compensation and pension exams. But what if you just have the total disability rating?
Jenna: So, VA is going to need to show that there’s been a material improvement in your day-to-day life, in your ability to function and perform your daily activities. So, they can’t just look at the rating schedule and say, you don’t meet the rating criteria for this 100% rating. They actually have to show that even if you don’t meet the criteria, maybe, your life hasn’t actually changed and so you should still get that 100%.
Jonathan: We’re going to pause for a second and take a question from the audience. We have a question from Janet saying, if a veteran served in Thailand or Vietnam and can establish Agent Orange exposure and the veteran has stage 4 prostate cancer, would a permanent and total 100% rating be granted? Either of you want to talk about that?
Jenna: So, that goes back to what we were talking about before. As long as that prostate cancer is active, then the veteran will be getting a 100% rating. But, if that prostate cancer goes into remission, then VA is going to assign ratings. Usually, you mostly see 30% and 60% based on the prostate cancer residuals. So, it’s not automatically going to be permanent and total.
Jonathan: And cancers do fall into that category that we talked about previously, that oftentimes will not be given that special permanent and total status because they can go into remission.
Jenna: Right. I think the question, referred to stage 4 cancer, which I think the indication there is that it’s not going to get better. And so, even though it’s not technically granted permanent and total, if he continues to have stage 4 cancer, for all intents and purposes, it is permanent.
Jonathan: So, it’s important to recognize that this isn’t just– that there is actually some meaning attached to this and so when you do get your rating decision and get your 100% disability rating, it’s great to get your 100% disability rating and you get- you’re paid at the 100% rate on a monthly basis. But getting that permanent status is also very helpful and does afford some protections that just having a 100% disability rating alone would not. If we don’t have any more questions from our audience, I think that we are all wrapped up here. And thank you very much for listening in. And keep checking us out on our website at cck-law.com and keep the questions coming. Thank you.
Courtney: Thank you.