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lew2 wrote:

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Just read about P&T ratings. How would you know if a SC rating is permanent? Thanks All. Also any input from my previous post would be appreciated. Thanks again

Typically you would find a reference, often obscure, in your award letter that may or may not include the actual word "permanent", but if a condition is determined as a total and permanent disability, your award letter should include a reference to Chapter 35 DEA benefits and(or) ChampVA benefits being authorized. Permanence only has significant meaning within VA compensation when it is coupled with a total disability. 38 CFR § 3.340(b) "defines" it as "Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.".

lew2 wrote:

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What if you are not 100% or IU, im not. Its my understanding that a rating of 10% can be "permanent" based off if it is likely to not get better over the lifetime of the veteran. Is this correct, thats what Im asking. Example: degenerative arthritis would be permanent condition correct. I have my initial decision letter from 2002 and another from 2004 where I was increased. I was just wondering if there would be somewhere in those decisions that would implicate permanent.

Not sure why it would even be mentioned in your award letter IF you do not ALSO have a combined total rating of 100% either schedular or TDIU. It has no real benefit associated just with it alone. Although your condition at whatever rating level given may be "permanent", i.e. not expected to improve within your lifetime, that doesn't mean that you will never receive another examination for it - the VA can examine you at anytime for any of your SC conditions. A "permanent" condition may be indicated in the VA database as "no further exams scheduled", BUT that is the VA "feeling" at the time you receive the award for that "permanent" condition (that phrase is probably placed in the database only for VA workload mitigation). The VA has the right by regulation and law to do an ad hoc examination of you at anytime for any of your SC conditions. Think of it as a "permanent until decided otherwise" type of designation.

IF the underlying question you are really asking is "How do I determine if the VA has no further exams scheduled for my condition?", then contact your VSO to find that out. If you don't have a VSO, this is probably one of the questions that the 800 number (1-800-827-1000) can answer.

Baghdaddy wrote:

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Here are some regs that lay out the prerequisites for P&T and IU. It comes out of the 38 CFR. Hopes this helps. You basically have to be rated at a 70% or higher to be considered for the P&T and IU. Hope this explains better.

§ 4.16 Total disability ratings for compensation based on unemployability of the individual.

<snip>

§ 4.15 Total disability ratings.

<snip>

§ 4.17 Total disability ratings for pension based on unemployability and age of the individual.

<snip>

I would suggest that all veterans with a total and permanent disability designation (often referred to as P&T on this board) read critically and carefully those provisions in the 38 CFR § 4.15 - 4.17 sections Baghdaddy has provided in his post # 8. If you do, you will note that when you obtain that P&T designation, these sections state very clearly that unemployability (i.e. inability to secure or follow a substantially gainful occupation) is one of the prerequisites for that designation. This is also supported in other 38 CFR sections as well as CAVC decisions.

Does that mean if you have that designation of P&T (as abbreviated on this board) and you are currently working ("gainfully employed" as defined by VA) that you can then expect the VA to cancel your (or your "eligible" kin) Chapter 35 DEA and ChampVA benefits if you receive them that such a designation allows? Maybe. Does that mean that VA can come back sometime in the future and request recoupment of the overpayment you (or your "eligible" kin) received for those Chapter 35 DEA and ChampVA benefits for the periods you were working ("gainfully employed" as defined by the VA) while having that P&T designation and received those benefits? Maybe.

Although VA seems to have been showing by their actions that they have not followed or enforced this "P&T" unemployability requirement, that certainly isn't worth squat if they do decide to start enforcing it in the future, perhaps in a misguided effort to save taxpayer money now that all government budgets are under scrutiny.

Although many members on this board has been reluctant to admit that such actions are available to the VA, this appears to be due to the misunderstanding of the definitions as used by reg and law of a total rating versus a total disability - they are not exactly the same in 38 CFR and the law. A "total rating" has to do with having a 100% rating either through a single rating of 100% for a disability, or a combined total rating of 100% for the combination of all your disabilities. It determines that YOU will be paid at the 100% compensation rate directly by the VA. It is determined by your actual SC disabilities. A "total disability" (as shown by the reg excerpts Baghdaddy posted et al.) is when your combination of disabilities PREVENTS YOU from pursuing a substantially gainful occupation. In certain cases, such as NSC Pension, you can actually have less than a 100% SC rating and still be determined to have "total disability" (see 38 CFR § 3.3(a)(2)(iv)).

Your "P&T" benefit that allows your eligible kin to receive Chapter 35 DEA benefits require a "total disability permanent in nature" as defined in Title 38 USC Chapter 35 subsection 3501(a)(1)(A)(ii). Although subsection 3501(a)(8 ) may provide some tenuous ambiguity for a case to be made that unemployability is not a factor by not explicitly mentioning unemployability like it does in 38 CFR, since it does refer back to provisions only applicable in 38 CFR, AND since regulations are designed to be implementing guidelines for the law as supported by the CAVC, the 38 CFR "definitions"/terms must control and they do clearly support that a "total disability" requires unemployment. Of course, anyone is welcome to take a case to the CAVC or other qualifying/appropriate jurisdictions based upon that Chapter 35 tenuous ambiguity should they ever have the VA attempt to stop or recoup Chapter 35 DEA benefits based upon the veteran working while under a "P&T" designation.

Your "P&T" benefit that allows your eligible kin to receive ChampVA benefits are covered by Title 38 USC § 1781. Subsection (a)(1) indicates the eligibility requirement to be "total disability, permanent in nature, resulting from a service-connected disability" and since there is no other provisions in § 1781 that provide any ambiguity to that requirement, again the 38 CFR more defining terms must control which require unemployability. It would probably require a massive amount of effort for the VA to attempt to recoup any payments for services under ChampVA ("payments" individually variable based upon services performed) so I would think that the outcome in any budget reduction or VA procedure change would simply be to stop current kin eligibility if you were working while carrying the "P&T" designation.

If this applies to you and worries you, I suggest that you obtain the services of an attorney cognizant of government law to validate what I have indicated above. After that you can make a decision on whether to continue your benefits OR instead continue working (if you are risk averse) if this attorney does validate what I have said. Of course if this applies to you, you can elect to ignore this post and do nothing. If you do that I would suggest you at least solicit an opinion on the best course of action from someone who has been in a somewhat similar situation of dealing with the government such as been required to pay back taxes, penalties and interest on their SSDI payments because they didn't bother to do the due diligence to determine whether their SSDI payments were taxable.

Just trying to make the VBN reader aware of potential pitfalls should they work while carrying a "P&T" designation.

If you disagree with what is outlined here and do decide to place that disagreement in a reply, please be kind and provide links to the regulations and/or laws that you believe refute what I have said in order to provide a "fair" reply. I find it hard to respond in a thoughtful or logical manner to "Hogwash" or like terms if they are not supported by facts and logic.

I still contend that having a "P&T" designation (as that term is used on this board) requires unemployability (as defined by the VA). I guess that is only "misleading" if it is not true. So far the only arguments advanced to refute my contention have been that there are people working at the VA who are 100% schedular and have a "P&T" designation. My response to that is "So?" Where are the regulations and laws that support that? If I happen to be caught breaking the law by performing a "rolling 'California' stop" at a stop sign, the judge in my case will certainly not accept my assertion "Well, everyone else is doing it." We have a case here if it ever comes to appeal or trial for a "P&T" veteran seeking to keep benefits or avoid recoupment as I outlined in my previous post of "Do as I say, not as I do". The "say" is what is defined by regulation and law, the "do" is what the VA just happens to have allowed and not enforced in the past - that doesn't mean they can't "crack down" in the future. My contention hinges on that there is a difference in VA definition of "total rating" vs. "total disability. One pertains to compensation, the other pertains to employment requirements.

Since I evidently have not provided enough documentation yet to "prove" my contention, consider this:

BVA CASES:

BVA citation # 0904608 (http://www.va.gov/vetapp09/files1/0904608.txt

Summary: Veteran currently had at time of decision 100% PTSD schedular rating attempting to also get "P&T" through the BVA:

Excerpt: "Total disability is considered to exist when there is any

impairment which is sufficient to render it impossible for

the average person to follow a substantially gainful

occupation. 38 C.F.R. § 3.340(a)(1)."

BVA citation # 0740068 (http://www.va.gov/vetapp07/files5/0740068.txt

Summary: Veteran currently had at time of decision 100% schedular rating for adenocarcinoma of the prostate, status post radiation therapy that was "total, permanent, and static in nature"

Excerpt: "Total disability is considered to exist when there is any

impairment which is sufficient to render it impossible for

the average person to follow a substantially gainful

occupation. 38 C.F.R. § 3.340(a)(1)."

BVA citation # 0300974 (http://www.va.gov/vetapp03/files/0300974.txt)

Summary: Veteran had at time of decision 100% PTSD schedular rating

Excerpt: "Legal Criteria. The term "total disability permanent in

nature" means any disability rated total for the purposes

of disability compensation which is based upon an

impairment reasonably certain to continue throughout the

life of the disabled person. 38 U.S.C.A. § 3501(a)(8 ).

Permanent and total disability will be held to exist when

an individual is unemployable as a result of disabilities

that are reasonably certain to last throughout the

remainder of that person's life. See Talley v. Derwinski,

2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15.

Total disability exists 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. 38 C.F.R. § 3.340(a)"

BVA citation # 9917095 (http://www.va.gov/vetapp99/files2/9917095.txt)

Summary: Veteran was seeking a 100% schedular rating for myocarditis. The remand had the following excerpt:

Excerpt: "38 C.F.R. § 3.340 (1998) provides that 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."

BVA citation # 9718109 (http://www.va.gov/vetapp97/files2/9718109.txt)

Summary: Veteran attempting to obtain waiver of NSLI premiums based upon total and permanent disability

Excerpt: "The definition of "total disability," other than that for

speech, was removed from 38 C.F.R. § Part 8 effective June

10, 1996. 61 Fed. Reg. 29290. See 38 C.F.R. § 8.21, as

amended. Generally, however, total disability has been

defined for VA adjudication purposes, and is 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.

38 C.F.R. § 3.340(a)(1)."

Examples of VA "total disability" for a non-TDIU reason defined within the law:

1) Talley v. Derwinski, CAVC case # 90-419, April 6, 1992:

"…Pursuant to a provision of Public Law 101-508, applicable to claims filed after October 31, 1990, the preambulatory clause was amended to read:

(a) For the purposes of this chapter, a person shall be considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person …".

Although this CAVC case was put forth to resolve an NSC pension issue, there are many other parts of this case that relate this "total disability" definition used to all the other non-NSC pension 38 CFR parts where "total disability" is discussed - also note that a reference to this case was cited in one of my BVA examples above that relates this case to a 100% schedular evaluation.

2) Collier v. Derwinski, CAVC case # 90-839, August 9, 1991:
"…With respect to what bearing the A.L.J.'s decision rendered under the Social Security Act is to have on the VA's determination of total and permanent disability, the Court notes that while there are significant differences in the definition of disability under the Social Security and VA systems (e.g., under Social Security, 42 U.S.C. § 423(d) (1988) and 20 C.F.R § 404.1509 (1990), the disability need not be reasonably likely to last for the claimant's lifetime as is required for VA purposes under 38 U.S.C. § 502(a)(1) and 38 C.F.R. § 3.340(b)), there are also significant similarities (e.g., both statutes include within their respective definitions, the terms "substantial[ly]" and "gainful" when describing the form of employment in which the claimant is unable to engage). Compare generally 38 U.S.C. §§ 521, 502 [and] 38 C.F.R. §§ 4.17, 3.321(b)(2), 3.340, 3.342 with 42 U.S.C. §§ 416, 423 (1988 & Supp. I 1989) [and] 20 C.F.R. §§ 404.1505-1576 (1990). …"

This CAVC case by the excerpt above indicates that VA's "total and permanent disability" requires unemployment, i.e. "…both statutes include within their respective definitions, the terms "substantial[ly]" and "gainful" when describing the form of employment in which the claimant is unable to engage…". It, at the least, indicates that such definition applies in whatever situation the term "total disability" is used by VA since it does include the 38 CFR references for both compensation and pension.

3) Title 38 U.S.C. § 1502 (formerly 38 USC 502) titled 'Determinations with respect to disability' (http://vlex.com/vid/determinations-with-respect-disability-19234801) states in part (1502 falls under Chapter 15 which generally refers to pensions):

"…(a) For the purposes of this chapter, a person shall be considered to be permanently and totally disabled if such person is any of the following: (1) A patient in a nursing home for long-term care because of disability. (2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner. (3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person. (4) Suffering from - (A) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (B) any disease or disorder determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. …"

In the case of (1), being in a VA nursing home by its eligibility requirements requires a low income but can be slightly above the poverty threshold (see 38 USC § 1722). In the case of (2) both SSI and SSDI require unemployability (inability to do any substantial gainful activity). In the case of (4)(B) first consider that (4)(A) implicitly discusses the context of "disability" associated with NSC while (4)(B) implicitly discusses the context of "disease or disorder" associated with SC AND secondly in order for (4)(B) to even be considered as an argument that "permanent and total disability" or "P&T" as it is referred to on this board does not require unemployability as defined by the VA, THEN such argument would have to show where the Secretary has determined that unemployability is not a requirement in SC cases. The 38 CFR regulations, BVA/CAVC decisions and the law do not support that argument EXCEPT in some very limited and income-defined cases where the "P&T" veteran is in a VA nursing home. Although a tenuous argument (tenuous because in order to pass the "totally disabled gate" to get "P&T", you already had to be unemployable as required by 38 CFR and the law - so a "Catch 22") could probably be made that a non-VA nursing home veteran with a "P&T" designation may be able to work without restriction, that certainly doesn't help all the other "P&T" designated veterans who do not reside in such a non-VA nursing home. Those non-nursing home veterans with a "P&T" designation are still required to be unemployable (VA definition) by 38 CFR, BVA, CAVC and the law.

CAVC decisions can be reviewed here: http://www.vetapp.uscourts.gov/

So I will continue to put forth my contention as necessary that "P&T" requires unemployability (as defined by the VA) UNLESS AND UNTIL someone can show me in regulation and/or law where that contention is not correct. If that is done, I will be more than happy to "eat crow" on my contention because I certainly don't like the fact that "P&T" requires unemployability. I searched very hard to try to refute that contention before I gave it but was not able to do so by law or regulation found.

Again, we should probably just agree to disagree if you are not yet convinced.