Roger Hale, Veterans Law Attorney
SSDI & TDIU Claims
Personal Injury Claims Nationwide Representation Free Claim Evaluation
Industrial Accidents Nursing Home Negligence Car Accidents Workers Compensation
Veterans Law Pain & Suffering Emotional & Mental Anguish
Roger Hale, Veterans Law Attorney
Have you received a RAMP letter? Talk with the experts at GloverLuck.
I'd like to ask you about: Presumptive Prostate Cancer, 100% disabled veteran court-appointed attorney, TDIU and Activities of Daily Living, Total hip replacement and complications, Ex-wife benefits and Purple Heart, Appeal Board hearing coming up, and a whole lot more.
38 CFR 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.
Examination reports indicating improvement.
Disabilities which are likely to improve.
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits
and a member of the Stateside Legal Website Advisory Board. Jim's Mailbag, is a regular column where veterans,
servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
You can browse all of these Q&As here, and search the Jim's Mailbag archives for helpful answers.
If Jim hasn't already addressed the questions you have, you can submit your own question.
§4.16 Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
(2) Disabilities resulting from common etiology or a single accident,
(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) Multiple injuries incurred in action, or
(5) Multiple disabilities incurred as a prisoner of war.
It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
A Statement regarding Permanent and Total Disability (P & T) ratings
assigned to veterans by the Department of Veterans Affairs
I have a temporary rating. I need a permanent rating for the additional family benefits. How can I do that?
The 100% P & T designation is seen as important because of the additional dependents benefits of Chapter 35 educational benefits or the CHAMPVA health insurance. There are other benefits associated with a permanent rating; for example, a veteran must be rated as permanently disabled for an uninterrupted 10 year period for his spouse to be eligible for DIC should the vet die of anything that isn't rated as service connected.
P & T may be associated with either a 100% schedular rating or a 100% TDIU rating.
Whether or not a veteran receives a "permanent and total" (P & T) rating depends on a wide variety of factors. There are generally 2 classes of 100% ratings that aren't rated as P & T. Service connected cancer ratings are always rated as temporary 100% because it's assumed the veteran will get treatment and the cancer will go to remission or a cure. The other class of ratings that are always temporary are mental health related. VA assumes that with time and treatment, almost all mental health ratings will show measurable, sustained improvement.
Mental health 100% ratings may convert to P & T after the veterans 55th birthday. The 55th birthday is generally viewed as the point that a person can't effectively be retrained in any field that would allow him or her to reenter the workforce. This standard isn't unique to veterans or the VA, the SSA and other similar agencies use the 55 year old standard too.
We recommend that veterans do not try to appeal their temporary 100% rating to achieve a permanent rating. The first reason to avoid seeking an appeal is that VA will tell you there's nothing to appeal, you haven't been denied anything. Then you must consider that any time we ask VA to review anything in our file, they will review everything. During these reviews they look for areas of improvement in your rated conditions and will often seek to lower an existing benefit. Advocates have many horror stories of veterans who "appeal" or otherwise ask for P & T and end up with a 30% rating after VA opens the file.
As time passes and you attend those future exams, it becomes very difficult for VA to show sustained and measurable improvement. We agree that in broad terms, when 5 years passes between exams it becomes almost impossible to show sustained improvement.
Waiting it out also gets you closer to the 55 year old point and a better chance of a permanent rating after that.
While we understand that to not be rated as P & T may cause you to miss out on some dependents benefits, we believe the risks of seeking the permanent rating status outweighs any perceived potential benefits.
Our recommendation is to wait it out and not seek a P & T status.
You should attend any and all future exams that VA schedules for you. Never miss or try to reschedule C & P exams. Be prepared for each C & P exam to show the examiner that there has been no change to the condition being examined.
General Information on Determining Unemployability
Factors to Consider When Determining Unemployability
Determining Marginal Employment
Determining Unemployability or Marginal Employment of Farmers
Obtaining Evidence of Disability
Determining Permanent and Total Disability
Effective Dates for Disability Pension Awards
Requirements for Retroactive Payment of Disability Pension
9 a.m. – 5 p.m. ET
FOLLOW The VAWatchdog
Claims Go Here
V A Claims Intake Center
PO BOX 4444
JANESVILLE, WI 53547- 4444
Toll Free Fax: 844-531-7818
We Are Encrypted
To 256-bit Encryption
There is no substitute
for the veteran claimant who is involved and informed. Once you've learned how the system really works, filing correctly...getting it right the first time...isn't that hard to do. Educate yourself by reading what the experts have to say.
If there's one thing military members know, it's that when the Defense Department gives you too much money, it will come back for it eventually.The VA is similar, but the system is worse.
Veterans Clinical Psychologist
Some Wounds Cannot Be Seen
Nexus Letters Independent Medical Opinions Psych DBQs
Black Friday is almost here.
Board Certified Physician/Surgeon Accredited Veterans Law Attorney Military Veteran
DRO, BVA, CAVC Appeals Nexus Letters Independent Medical Opinions
Has Your Claim Been Denied? Do you need an IMO or a DBQ?
You'll need to speak with an expert physician and then a veterans law attorney.
Why not speak with both at the same time?
(520) 219-7321 Free Case Evaluation (520) 219-7344
The Veterans Medical Advisor
Independent Medical Opinions Nexus Letters Records Review
Nationwide Representation Free Consultation
FREE case evaluation.
The attorneys and doctors
you'll meet here will be happy to review your case for free. It will
only cost you a little of your time
to speak with an expert.
What are you waiting for?
VAWatchdog Dot Org
Military Records DD 214
Official Military Personnel Files (OMPFs)
Official Personnel Folders (OPF)
Selective Service Records
Deceased Veteran's Claim Files
Individual Deceased Personnel File
Vet Friendly Law...as it should be.
Veterans Law At Your Service
Unemployability (TDIU) Appeals,
Agent Orange Exposure, Death Benefits, PTSD & Mental Health Appeals,
Gulf War Syndrome, BVA % CAVC Appeals,
Asbestos or Radiation exposure, Traumatic Brain Injury
Nationwide Representation Free Claim Evaluation
844 244 VETS (8387)
VA Disability - When the initial decision finds no "nexus"
What is the "nexus" and why is it important?
VA Malpractice Attorneys Helping Veterans Harmed By The VA
Veterans Healthcare Rights - Federal Tort Claims - VA Medical Malpractice Claims,
Misdiagnosis, Hospital Negligence, Medical Errors
For a review of your VA malpractice case contact our lawyers today. Our firm serves throughout
the nation, and is one of the few firms to have specialized experience in VA malpractice cases.
Veterans Law Attorney OEF & OIF Air Force Veteran
A VETERAN FOR VETERANS
Proven Results • Direct Communication • No Fees Unless You Win
TDIU CUE Specializing in PTSD Disability Claims & Appeals MST TBI Hearing Loss & Tinnitus Appeals
Nationwide Representation Free Case Assessment (844) 385-5665
What Additional Benefits
Are YOU Eligible For?
VBA Derivative Benefits Eligibility
I am a Veteran
Veterans of the United States Uniformed Services may be eligible for a broad range of programs and services provided by the Department of Veterans Affairs (VA).
Hey Jim, What's a Personal Injury Claim?
VA Form 21-526EZ
Disability Service Connection
Secondary Service Connection
Temporary Total Disability Rating
Compensation under 38 U.S.C. 1151
Special Monthly Compensation
Special Home Adaptation
Benefits Based on a Veteran's
Seriously Disabled Child
The Benefits Navigator will:
Take less than 20 minutes -
Keep your personal information secure -
List benefits you may be eligible for.
VA Benefits for Your Child
The Department of Veterans Affairs (VA) offers several benefits for the children of veterans:
(1) Education benefits
(2) Health care CHAMPVA
(3) Life insurance
(4) Memorial benefits
Got a problem? Talk to the boss.
Robert Wilkie, VA Secretary
West Point Graduate - 20 Years Army Service - Airborne - Explosive Ordnance Badge
Free Case Review - Nationwide Representation
BVA/DRO Appeals - Fiduciary & Caregiver Issues, Trusts, Wills
Appeals of Veterans & Survivor Claims
Education and Training
The end of military service marks the start of something new.
What's a VA 1151 Claim, Jim?