Permanent and Total VA Disability

CCK Law: Our Vital Role in Veterans Law

1. What is Permanent and Total Disability?
2. Conditions that automatically receive a permanent and total rating (P&T)
3. Conditions less likely to receive P&T
4. How to find out if your VA rating is permanent
5. Is there a VA form to apply for Perm and Total status?
6. Viewer Question: If you have permanent and total Social Security Disability Insurance (SSDI), are you automatically entitled to P&T disability at the VA?
7. If you receive Total Disability for Individual Unemployability (TDIU), are you permanent and total?
8. The advantages of having Permanent and Total VA Disability
9. Other Protections from VA Rating Reductions: Stabilized Ratings
10. Other Protections from VA Rating Reductions: Continuous Ratings
11. What to do if VA proposes a rating reduction
12. Final Thoughts & Tips

Video Transcription.

Brad: Good afternoon. Welcome to CCK live. My name is Brad Hennings. We’re here with Emma Peterson and Christine Clemens and we’re here at Chisholm Chisholm & Kilpatrick in Providence, Rhode Island. We’re going to be talking about permanent and total disability today. Please, as always, if you’re watching us on Facebook Live feel free to leave any comments and we will try to answer any questions that you may have in the comments section. In addition, feel free to reach out to us afterwards if you’re watching this later either on our Facebook page or on our website at cck-law.com.

All right. Today we’re going to be talking about permanent and total disability otherwise known as P&T, and this is widely known in the veterans community as a desirable thing to have added to your award. What we’re talking about is the VA disability compensation program, not VA pension. Most often that you hear about it in the context of you have total disability due to Individual Unemployability benefits and you want them declare permanent and total or P&T by the VA. Let’s get going and talk a little bit about this. What is permanent and total disability?

Emma: They are sort of two concepts on their own. Total disability is what it sounds like. It means that you’re 100% disabled, whether that be through a combination of disabilities you have service connected that combined together to 100% or you have been found to be unable to work. You have a TDIU benefit from VA, so you’re totally disabled. Permanent means that VA is decided that it’s reasonably certain that your disability is not going to get any better, it’s not going to be any improvement for the rest of your life and they use medical evidence to come to that conclusion. So together it’s a super important finding that you are only, not only permanently but a 100% totally disabled can be a great addition to it for a veteran to have. It means that you are going to keep that 100% rating and VA is not going to change it in the future.

Brad: Okay. So, are there any disabilities that automatically receive permanent and total ratings?

Christine: Sure. So, some disabilities like an irreversible loss of use either due to paralysis or amputation of both hands, both feet, one hand and one foot, side of both eyes, are becoming permanently helpless and bedridden. Those are things that would automatically receive permanent and total. There’s some other conditions as well. Then some conditions might be less likely to be deemed permanent and total. We often see, first of all, temporary disability rating. So temporary 100% rating based on hospitalization due to a convalescent period after surgery. There are certain ratings as well that might get a 100% rating for a year after, for example, a hip replacement, but that 100% rating is not a permanent rating necessarily.

Other things that we often see certain cancers. The cancer when it’s active is rated at 100% and after a period of remission it is the VA will reassess the condition and assign a rating based on the symptoms at the time.

Also, mental health conditions a lot of times are not rated permanently and the idea behind that is that these are conditions that can improve over time.

Brad: Let me before we go any further into the topic, let me just say that this can be a complicated issue or set of issues. And although a veteran or a claimant or their relatives may think that they should qualify for permanent and total it’s ultimately in a judo Victoria determination by the VA meaning a decision that the VA makes. If you’re going to go for permanent and total or think you should be as permanent and total, please reach out to someone who’s knowledgeable in the area be at a veteran service organization like our colleagues at the Disabled American Veterans, DAV or a VA accredited attorney or VA accredited agent. With that, how do I know if my disability rating is permanent? What do I do if it isn’t permanent but I think it should be?

Emma: Sure. So a couple of ways to figure out if VA has decided your permanent and total. You can look in the writing decision you receive. They might come out and say it. They might say it in that cover letter that comes to the decision saying, “We found to be permanent and total.” Sometimes, but not always our veterans will receive the code sheet which actually has a list of all the disabilities they have service connected and it might be listed in there. Or there’s some a couple other things that might signal you’ve been found to be permanent and total. They might assign it at 100% rating and say, “No future exam.” That’s a good indication that they found to be permanent and total. If they award certain benefits like champ VA benefits which is healthcare for dependence, VA health care for dependence, chapter 35 dependent education assistant program. If you see chapter 35 DEA awarded to you and a decision, that’s a good indication. So, those are some things, some clues you can look for in the documents he received from VA.

If you haven’t been found to be permanent and total and you like the benefit, you certainly can ask for that. But my recommendation would be to talk with your accredit agent, your VSO, your attorney whoever you work with about what types of medical evidence you might already have in your file or what you need to get to show VA that your disability is permanent and total because they are going to look for some type of medical evidence to make that decision.

Brad: Is that something there’s a VA form for because the VA is become obsessed with the forms to use to apply for benefits? Or is it just something you ask VA to do?

Emma: To my knowledge there’s no forum for that. This is something you’re going to have to ask VA for. They should be granting it if you deserve it, if it’s raised by the record, and it’s in there, that’s something that they should be given to you but sometimes you might have to push for it.

Christine: And the way that you might push for it might include the use of some form but there is no as Emma said, specific form for this.

Emma: Right.

Brad: We have a question from Glenda and the question is, if you are totally disabled by the Social Security Administration, SSA, are you entitled to VA disability?

Emma: Not automatically. So, SSA determinations are not binding on VA. The information that they use is certainly persuasive and it’s good evidence. I heard, I think it can be very helpful, but VA is an entirely different administration. They have different rules for awarding benefit and that’s sort of, getting into a whole other conversation. But certainly, check out our website with a series of Facebook Lives and a lot of blog postings about how you get VA disability and how you get service connection. But unfortunately, no, there’s sort of no automatic cross between SSA and VA.

Christine: The other thing I would say is that it depends on the conditions that render somebody totally disabled. The Social Security Administration is looking at total disability. The VA for the purposes of what we’re talking about today for compensation benefits is looking at service-connected disabilities. They might be the same, they might overlap but they might be different. I think what Emma was suggesting is where the conditions do overlap and are the same, the standards are still different. That’s something to keep in mind.

Emma: Absolutely.

Brad: Basically, what I hear both of you saying is, it’s the classic lawyerly answer. It depends, right?

Christine: Right.

Emma: It absolutely depends on the circumstances.

Brad: If you qualify for TDIU or Total Disability due to Individual Unemployability, does that mean that your rating is automatically permanent and total?

Christine: Not necessarily. TDIU is a total disability rating. So, it means that you meet one of the criteria that you’re totally disabled. It doesn’t necessarily meet the permanent criteria.

Brad: Okay. What are the advantages of having a permanent and total rating? Are there additional benefits that veterans are– that are available for veterans?

Emma: Absolutely. So, first are sort of local and state benefits that might be available to you. And I certainly recommend you reach out to different agencies in your state to find out what those might be. But then there’s also like we mentioned before, benefits for your dependence with educational assistance and health care coverage which is huge due to the exponentially increasing costs for both of those things. And finally, there’s a benefit to your spouse or dependent should the unfortunate event that you pass away. They’d be entitled to dependency and identity compensation going forward automatically if you’ve been permanent and total for at least 10 years prior to your death. Without having to prove that you passed away due to a service-connected disability. If it’s less than 10 years then they do need to file for service connection for cause of death. But that’s an amazing benefit for like I said, a spouse or dependent if you are unfortunately passed away, they get a monthly benefit going forward.

Christine: I would say one other benefit that’s not a technical benefit but one thing that we often hear from our clients is that there’s a benefit for a peace of mind. That they’re not going to be scheduled for additional exams that they may have difficulty getting to or remembering when the day is. That I think is also pretty huge, right?

Brad: Again, this is Brad Hennings joined by Christine Clemens and Emma Peterson here at Chisholm Chisholm & Kilpatrick, CCK Live. Please, reach out to us either on Facebook or at our website at cck-live.com. With that, even without a permanent and total rating, some of that terms may have more protection from VA rating reductions. How does this work?

Emma:  There are ratings that could become stabilized. If you’ve been rated at a certain level for five or more years and you’re at or above that rating for five or more years, VA has to overcome some higher burdens to then reduce you. They can’t just use one examination, one new VA examination to show that you’ve improved and then reduce your rating. They have to show the medical records that you’re not just temporarily experiencing a minor improvement and they have to show the evidence in your file predominantly demonstrate sustained improvement. That’s hard burden to me.

Christine: And it is a burden that’s on the VA.

Emma: Correct. Not on you, the veteran to show this. They have to overcome that hurdle before they can actually reduce you. Now, that doesn’t mean they won’t do it anyways and it doesn’t mean that you should just go with it. If you certainly think that it’s not warranted you absolutely can file a notice of disagreement with that reduction if it happens. But then there’s another even greater benefit is that if you’ve been continuously rated at or above a certain level for 20 or more years, then that is going to be essentially permanent for lack of a better way to say it. But VA is going to have to show that the rating to reduce you, they’re gonna have to show the original rating was based on fraud or some sort of higher standard like that.

Brad: What about protections for veterans with total ratings that haven’t been deemed permanent and are there some other tips that you can add into this area?

Christine: Yeah. It’s sort of similar to what Emma talks about the standard for that the VA has this burden of showing sustain improvement. With total ratings, the VA has to show material improvement. What that means is that there’s some sort of observable change in the veterans ability to function under conditions of daily life. The VA would have to show that this is really– this condition has improved in a way that is observable, right? That’s the first thing that people can see the change, the improvement and in these conditions of daily life. If somebody’s still impaired in being able to to work, to cook, to leave the house, to go to the grocery store, it’s going to be very hard for VA to meet that legal standard that they’re required to.

Brad: Let’s talk a little bit about what are kinds of things you want to do as a veteran, if VA is proposing a reduction? What are the some of the examples of kinds of evidence or things you’d want to show to VA so they wouldn’t reduce you?

Christine: There are a couple of things and first just sort of from a procedural standpoint, is the veteran would want to respond to that notice that the VA sends to them. But veteran responds within 30 days requesting a hearing it will stay in what that means in kind of English is that it will prevent the VA from being able to take the action of reducing the veteran before granting them a hearing.

The other thing is that the veteran wants to respond to that with evidence that supports even though the VA has the burden, has the obligation, the veteran would want to inform the VA that this condition hasn’t improved. That the impairment is the same or has oftentimes, has gotten worse in ways that might not be evident from a medical exam. Lay statements, statements from family members, spouses, friends, those are all helpful in developing the record. Statements from doctors that say, “This condition hasn’t improved any.” maybe the veteran had a good day and had a good exam that one day, that moment in time, but this isn’t reflective of what the veterans experiencing on a daily basis and the types of impairment that the veteran would have in any sort of employment capacity.

Emma: I think a good sort of real life example that we see a lot of times are with the orthopedic conditions because the testing VA does for those conditions is based on range of motion. How far can you move your leg and knee and things like that. In a controlled clinical environment with an examiner measuring your range of motion maybe you can move it up and down. But in your day to day life, you can’t walk down the end of your driveway to get your mail. So It’s too painful. You need to have someone come into your house to help you cook and clean. That’s the reality of your day to day life and so that’s what we mean when we say under the conditions of ordinary life. If that hasn’t improved then VA should not be reducing you. I think again, lay evidence explaining that is very helpful. It’s not again the veterans burden to prove that but it can’t hurt to get that evidence in there.

Brad: Let me use this opportunity to again, this can be complicated. So please if you have a resource of veteran service organization like DAV, VA accredited attorney, VA accredited agent, someone that you can consult with. If the VA proposes to reduce something like this I think it would be incredibly helpful to talk to them and work through what they think would be helpful for you on your individual case. With that we’ve gone through the basics of permanent and total. We’ve talked a little bit about rating reductions. Are there any other points that either of you would like to add, any final words? Thoughts?

Emma: Christine?

Christine: Oh, I don’t know if I have any final words or thoughts? I mean I think, you know Brad, I think you said it best that this is really complicated stuff. There are benefits to being permanent and total. It doesn’t apply to everybody. But if you have the question it’s important to ask and to get the right information, and that’s why reaching out to an accredited representative is so important. The other thing I would say is that it’s not uncommon for somebody to file an increased rating claim and for the VA, and this is just kind of on exams to say, well, maybe we think your condition has improved, and the veteran doesn’t have to accept that statement that the VA thinks that condition has improved or take it at face value. Even though again, we’ve talked about the VA does have the burden there are strategies for veterans and accredited representatives are in a good place to talk to them about what the best strategy would be.

Emma: I would just going off that same thing. If you think you do deserve this benefit, certainly get with someone and figure out how to ask for it if VA hasn’t award it to you because there are a lot of a host of other really great benefits that come along with being rated permanent and total. Don’t be afraid to seek out help and discuss it. That’s going to be a good option for you to go ahead and ask VA for it.

Brad: That raises another really good point. A lot of times veterans think they’re already permanent and total and they’re actually not. That’s something to again, talk to you representative, talk to VA and ask them, “Hey, have you officially declared me if it’s not so obvious from the paperwork that the VA is provided?”  And as I said, don’t feel shy about saying, “This isn’t getting any better and it’s severely impacting my life.”

With that, again, thank you all for joining us this afternoon at CCK Live. Again, my name is Brad Hennings, for Christine Clemens, Emma Peterson. We’re here at Chisholm Chisholm & Kilpatrick. If you have any additional thoughts or questions, please reach out to us on Facebook, at our Facebook page in the comments section or reach out to us on our website at cck-law.com. With that, thank you so much for joining us.