Are you totally disabled? Is your rating Permanent? In other words, are you P & T?

If not, what do you want to do about it? What can you do?

The difference between P & T and temporary may mean tens of thousands of dollars in benefits to you and your family.


    STOP!

    **Take a minute now and find your original award letter. You're going to need it to determine your status.**

There is a lot of confusion and misunderstanding about just what a Permanent & Total rating is.

In the language of your VA, the word permanent does not mean that your benefit is permanent! To have a 100% P & T rating only implies that your dependents are eligible for benefits like DEA & CHAMPVA. 

Your rating is NOT protected! There is but one way to achieve a "protected" rating...you must hold it uninterrupted for 20 years. Until you've held the rating for 20 years VA may contact you at any time to evaluate (and lower) your rating.

How do you know if your rating is temporary or permanent? You go to your original award letter and look for the secret codes VA likes to use to confuse you. If your award letter says "No future exams are scheduled..." that means that your rating is permanent. If you see "Eligibility to dependents Chapter 35 DEA / CHAMPVA are established", your rating is permanent.

Those phrases may differ from one VA Regional Office (VARO) to the next but there should be something similar on your award letter.

If you see "Future exams are scheduled" or similar, or no reference at all to future exams or other dependents benefits, your award is probably temporary.

VA establishes the rating as permanent when there is little chance that the condition will improve. VA makes a lot of mistakes when establishing the permanence of a rating. It's up to you to know what to do...nobody will do this for you.

As a rule, most mental health conditions and cancers will be temporary ratings.

A veteran must hold a 100% permanent rating for 10 years, uninterrupted, for his/her family to be eligible to apply for DIC benefits should the veteran die of anything other than a service connected condition.

TDIU awards may be permanent or they may be temporary.  

When VA writes to say "No future exams are scheduled" they do not mean "We will never subject you to an exam in the future".  All this means is that there is no examination scheduled. VA can schedule an exam at any time and for any reason.

If you are rated at 100% and you decide to file for another disabling condition, you may be scheduled for a C & P exam to review the current rating. If the C & P exam shows improvement, you'll probably be advised of a proposal to reduce your "permanent" 100% rating.

If you are TDIU and you miss completing the VA Form 21-4140 that is required each year, you will probably be advised of a proposal to reduce your rating.

Most states require that you be permanently and totally disabled before you may pick up any state benefits for disabled veterans. Most states don't understand what "no future exams" means. You may write to your VARO and request a letter that spells out your disability status.

Do you NEED a permanent rating assignment? Are your kids heading to college and your spouse isn't covered by insurance?

Don't tell VA about it! If your rating is temporary and you want it to be permanent so that you have those benefits, you may write to your VARO and ask for a permanent rating designation. However, the assignment will not be made based on your need. You must tell VA that there is no reasonable chance that your condition will improve. That's the only factor that will be considered.

Do your homework. Know whether or not your rating is permanent or temporary!

Permanent or Temporary?

The veteran is finally rated 100%. She sees on the award letter “future exams are scheduled”. She learns that this means her spouse isn't eligible for CHAMPVA and her kids won't see the C-35 DEA benefits she hoped would help pay for their college.

The state she is in has generous benefits for permanently disabled vets but the “future exams are scheduled” keeps her out of those benefits.  Her disability is one that does not seem to be likely to improve and she believes that she should be P & T and qualified to apply for CHAMPVA and DEA.

Should she ask VA for P & T? Is there a legal or regulatory basis to do so?

Maybe...maybe not. There are many variables that every veteran must consider when contemplating whether or not to seek the assignment of permanence.

Each vet must carefully review his or her own circumstances. As a general rule, the permanent rating will provide significantly better benefits for dependents than a temporary rating. However, if the veteran isn't well prepared when asking that the rating be modified from temporary to permanent, there is some risk.

Seeking to change the status of your award from temporary to P & T is the same as asking for an increase to an existing rating.

Click here to learn more. 

Jim's Mailbag   More of Jim's Mailbag is here and here.


Dear Jim;

I need to be rated as Permanent and Total. I've been rated 100% for years and I've never had any examination. I need the additional benefits for my family. How can I get VA to rate me as P & T?

Reply;

Let's first determine whether or not your rating is P & T or Temporary. Dig out your award letter. That's the document VA sent you (should have sent you) when your rating was established.

Your VA uses an arcane secret code in a lot of its work. This one is as mysterious as can be. In your award letter there is a phrase that says, "Future examinations are scheduled". It may not read exactly like that but there should be a similar phrase. If you are scheduled for future exams, that means VA expects that your condition will improve with time and treatment and you will be reexamined for a rating adjustment.

If you find a phrase that says, "No future examinations are scheduled", this means that your rating is considered to be permanent with no likelihood of improvement. You may not find this particular phrase. Instead you may see "Eligibility to dependents benefits Chapter 35 DEA is established." That also means that you are P & T.

Why can't VBA just use the term P & T? Nobody can explain that to me. Using their secret code confuses the VA. A veteran with a schedular rating is no different than a veteran with a TDIU rating. Either may be P & T. To be eligible for dependents benefits requires that the veteran is P & T. However, CHAMPVA and Chapter 35 DEA benefits are often denied because that division of the VA doesn't understand what "No future exams" means. On an almost weekly basis I recommend to veterans that they must appeal denials because the other divisions of VA doesn't understand the VBA lingo.

Your condition and rating is probably temporary if you have a mental health rating, a cancer rating, or if you are young.

To seek a P & T rating is as simple as writing to VA to tell them why you believe you deserve it.

DO NOT write to VA to tell them you need the rating because your spouse needs the CHAMPVA benefit. Decisions about benefits are only made by the rules and there is no rule about how badly you need insurance coverage for your spouse. Stick to the facts.

Be aware that any time you request a modification to an existing benefit that VA will reexamine you and look through your file to find any improvement. Many veterans are shocked when the receive a response to their request that tells them that VA proposes to lower their overall rating rather than to award an increase or to make a rating P & T.

Prior to requesting P & T status, be sure that you meet all qualifications and requirements.

How can you be sure that you meet the requirements? You match your disabling conditions and your evidence to the Schedule For Rating Disabilities.

38 USC 1156 - Temporary disability ratings

(a)

Assignment of Temporary Ratings.

(1) For the purpose of providing disability compensation under this chapter to veterans, the Secretary shall assign a temporary disability rating to a veteran as follows:

(A) To a veteran who —

(i) was discharged or released from active duty not more than 365 days before the date such veteran submits a claim for disability compensation under this chapter;

(ii) has one or more disabilities for which a rating of total is not immediately assignable —

(I) under the regular provisions of the schedule of ratings; or

(II) on the basis of individual unemployability; and

(iii) has one or more —

(I) severe disabilities that result in substantially gainful employment not being feasible or advisable; or

(II) healed, unhealed, or incompletely healed wounds or injuries that make material impairment of employability likely.

(B) To a veteran who, as a result of a highly stressful in-service event, has a mental disorder that is severe enough to bring about the veteran’s discharge or release from active duty.

(C) To a veteran who has a service-connected disability that requires hospital treatment or observation in a Department of Veterans Affairs or approved hospital for a period in excess of 21 days.

(D) To a veteran who has a service-connected disability that has required convalescent care or treatment at hospital discharge (regular discharge or release to non-bed care) or outpatient release that meets the requirements of regulations prescribed by the Secretary.

(2) With respect to a veteran described in paragraph (1)(A), the Secretary may assign a temporary disability rating to such veteran regardless of whether such veteran has obtained a medical examination or a medical opinion concerning such veteran’s disability.

(3) With respect to a veteran described in paragraph (1)(B), the Secretary shall schedule a medical examination for such veteran not later than six months after the separation or discharge of such veteran from active duty.

(b)

Termination of Temporary Disability Ratings. —

(1) Except as provided in paragraph (2), a temporary disability rating assigned to a veteran under this section shall remain in effect as follows:

(A) For a veteran who is assigned a temporary disability rating under subsection (a)(1)(A), until the later of the date that is —

(i) 12 months after the date of discharge or release from active duty; or

(ii) provided in regulations prescribed by the Secretary.

(B) For a veteran who is assigned a temporary disability rating under subsection (a)(1)(B), until the date on which a rating decision is issued to such veteran following the medical examination scheduled under subsection (a)(3).

(C) For a veteran who is assigned a temporary disability rating under subsection (a)(1)(C), until the later of the date that is —

(i) the last day of the month in which the veteran is discharged from the hospital as described in such subsection (a)(1)(C); or

(ii) provided in regulations prescribed by the Secretary.

(D) For a veteran who is assigned a temporary disability rating under subsection (a)(1)(D), until the date that is provided in regulations prescribed by the Secretary.

(2) The Secretary may extend a temporary disability rating assigned to a veteran under subsection (a) beyond the applicable termination date under paragraph (1) if the Secretary determines that such an extension is appropriate.

(c)

Regulations. —

The Secretary shall prescribe regulations to carry out the provisions of this section.

(d)

Construction. —

Nothing in this section shall be construed to preclude the Secretary from providing a temporary disability rating under an authority other than this section.

Permanent total disability.

Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.

The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability.

Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals.

The age of the disabled person may be considered in determining permanence.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

§3.340  Total and permanent total ratings and unemployability.

    (a) Total disability ratings:

        (1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render
it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

        (2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

        (3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total
disability may be made, provided:

            (i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

            (ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at
least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

            (iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

    (b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person
is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

    (c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

How To Have Your Current Rating Made Permanent and/or have the % Raised                                          

One of the more frequent questions posed to VAWatchdog is how a vet may achieve a permanent rating rather than a temporary rating. Along with that are the vets who believe they deserve an increase in an existing rating.

Veterans are often unpleasantly surprised to discover that they aren't P & T. This usually occurs when the veteran has been rated 100% for years (either schedular or TDIU) and applies for the Chapter 35 DEA benefit for a dependent or when the vet applies for CHAMPVA for a spouse or child.

When the denial letter is received, there is always a lot of confusion.

Sometimes the vet has received a letter stating that he or she is P & T. These are usually computer generated letters that update the vet about their benefits. The letters are supposed to be used when the veteran applies for benefits that their state may offer them.

It's unfortunate that these letters are often wrong. I read one recently that clearly said the veteran was permanently and totally disabled. The veteran has received her award letter 12 years before. The award letter told her that there were future exams scheduled.

During those 12 years the veteran had not been scheduled for any exams. Her rating had remained at the 100% TDIU status. She was
preparing her eldest son for his upcoming college years when they applied for Chapter 35 DEA. The application was denied as she was not
P & T. Veterans must be P & T to receive those additional benefits.

When she emailed me she was confident that the letter stating that she was P & T would be the correct one.

Unfortunately, that is the sort of error that VA commits often. The only letter that counts is the original award letter. That's the one telling her
that future exams are scheduled. Even though VA forgot to schedule her C & P exams and even though that one letter told her she was P & T, VA will default to the original award letter. Her TDIU rating is temporary and her dependents are not eligible for the additional benefits.

Now what does she do?

She must sit back and think about a risk/value assessment. That's where we compare and contrast the risk of taking an action compared to the value it will bring if we are successful.

There is always risk when we disturb the sleeping dog. If your rating is assigned as temporary and you ask to be rated as permanent, the VA
will review your file. You will be scheduled for a C & P exam. VA will decide whether your request meets the required criteria as well as the possibility that the your rated condition(s) may show improvement. VA would then probably propose to you that your rating be lowered.

That's the risk. In our experience the VA rarely wins if the veteran promptly appeals and follows the rules of engagement. However, this is one
of the reasons to be sure that you are qualified to meet all the criteria either for a permanent rating or and increased rating or both. If you aren't sure that you are qualified, take the time and study the issue before you file.

The reward side of this is that the veteran becomes eligible to apply for enhanced benefits for their dependents. Chapter 35 DEA may provide a generous check each month for a dependent in college until age 23 or even 26 in some cases. CHAMPVA is good health insurance for dependents. C-pays are relatively low and many physicians accept CHAMPVA. The CHAMPVA plan provides a pharmacy benefit but as is typical, no eye care or dental is available.

The dependent of a vet who is 100% P & T and held the P & T rating for 10 years becomes eligible for DIC if the veteran dies of any cause. If the veteran hasn't held the P & T rating for 10 years and he or she dies of anything other than a rated condition, there will be no DIC for dependents. The effective date of the P & T rating is important.

If you earned it and if you can show evidence to support your application, you may consider filing a claim for the rating and/or increase.

As with almost every other action you'll take with your VA, you'll write a simple letter. Any actions that you need to take with your VA are
always best accomplished in writing and sent via certified mail, RRR. You should tell VA in simple terms what you are seeking.


DATE

VARO ADDRESS

YOUR NAME & NUMBERS   C-FILE - SSN

Dear Sir/Madame:

I am requesting that you will adjudicate me as permanently and totally (P & T) disabled with no future exams scheduled.

I am asking this because I am certain that I meet all VA criteria. Since (DATE) I have been unable to work because of my service connected conditions and disabilities. (Describe other disabilities briefly.)

It is unlikely that my conditions will show any measurable improvement. Since my original rating my conditions have worsened.

Thank you for your consideration.

Respectfully submitted,

Your Name, Signature, Address, Telephone, Email


The template above is typical of the way we address the VA. The veteran should make the point and say nothing more. If you have evidence,
you should include it with this letter.

Note that we didn't tell VA that we need the benefit. VA doesn't award any benefit to the veteran because of need. VA awards a benefit because
of eligibility. If you aren't eligible, you won't get the benefit.

Whatever you do, don't do too much. VAWatchdog doesn't send huge batches of evidence, particularly if there are articles randomly printed off the Internet. Make your point, close and let the system do it's work.

Before you try to take action with a steady, stable disability compensation award, do your homework.

Planning and preparation may take you a day. Planning and preparation can save you years of future headaches. It's worth your efforts.