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Permanent and Total Disability (P&T)

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 you hear about it in the context
of you have total disability due to Individual Unemployability benefits and you want them
declared 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: So, 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 100% totally disabled can be a great addition 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. And 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 and knee 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: So, 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
an adjudicatory 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 it a veteran service organization like our colleagues at the Disabled American
Veterans, DAV or a VA accredited attorney or VA accredited agent. So 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 you’re permanent and total. You can look in the rating decision you receive. They might come out and say it. They might say it in that cover letter that
comes with 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 you that 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 dependents, VA healthcare for dependents, chapter 35
dependent education assistant program. If you see chapter 35 DEA awarded to you in
a decision, that’s a good indication. So, those are some things, some clues you
can look for in the documents you’ve 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 accredited 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: So 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 form 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 giving 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 Glenden 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 certainly 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 we have
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. And so, 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. It absolutely depends on the circumstances. Brad: So, 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. So, 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 dependents with educational assistance and healthcare 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 indemnity
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 unfortunately pass 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
the 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. And so, 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 veterans may have more protection from VA rating reductions. How does this work? Emma: So, 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 through medical records that
you’re not just temporarily experiencing a minor improvement and they have to show the
evidence in your file predominantly demonstrates sustained improvement. That’s hard burden to meet. 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, so — It’s sort of similar to what Emma talked about
the standard for that the VA has this burden of showing sustained 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 veteran’s 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? So, 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 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: So, 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. If the 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 veteran’s 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, a veterans
service organization like DAV, a 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 the 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 awarded 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 has provided. And as Emma 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.

30 thoughts on “Permanent and Total Disability (P&T)

  1. would my disabilities be able to get tdiu with a 20%for my back and 20% for redulapathy for each leg for a total of 60%

  2. If you've been awarded a 100% TDIU just a few months ago, for a claim filed 7-8 years ago, can I expect a P&T determination ?

  3. I truly appreciate your hard work and sharing knowledge for us vets to make better decisions and just “knowing” what some of the terms mean.

    Again, as always 🙏🏾

  4. I see so many people on videos like this talking about what they deserve based on their service. Here is what you deserve:
    1. To be paid–which you WERE, for your active duty and guard time. And you were likely paid well over the average for civilians with your same educational and work history at the time you enlisted.
    Here are the bonuses you get:
    1. Free education (saving you THOUSANDS in student loans)
    2. Vocational training and job finding services
    3. Hiring preferences with many companies, including federal jobs
    4. Free or low cost health care at VA hospitals and clinics
    5. GREAT VA home loans (seriously, who gets good interest rates with no money down?)
    6. Waived property taxes in some states, like Texas, where property taxes are outrageously high.

    If you can't make it work with alllllll of those things, then something is up.

  5. How can a person's mental health can be improved? I am still trying to find out how? Because I keep seeing dead bodies. I have suppressed them for a long time and now they are here. How does the VA cure that?


  7. I just had my exam for my severe persistent chronic asthma. It stated that my asthma precludes me from any physical occupation. Does that mean they find me totally or partially disabled?

  8. Let say you have a combined rating to grant 100% P&T and are awarded. Now lets say for example you have physicals therapy for one disability and were seeing a psychiatrist for PTSD treatment once a month including prescribed medication. Will this hinder the rating granted?

    Now let say you are continuing with physical therapy but your psychiatrist has not scheduled you more monthly appointments and need more meds. Will this hinder your rating?

    finally, if you do request for more appointments to see your psychiatrist, and request more meds, will this hinder the rating?

  9. As always a professional, understandable, to the point and friendly presentation. I concluded my own recent P&T decision with VA actually! In fact it was decided for me with no further questions or evidence needed. I watch all of your broadcasts and have seen most of your youtube videos including some that are non applicable to my situation. I am absolutely sure the knowledge I gained from CCK help me gain an insight to better prepare my very simple and straightforward service connected disability resulting from active duty. If it had been any more complex I would have done anything in my power to save any amount of money to reach out and get in touch with one of you to represent me. I'm that impressed. Keep doing what you all are doing! You do a great service to Veterans like myself! You should be proud that the information you pass down changes lives.

  10. I am going for another c and p exam next year. I was awarded 70% but a week later 100% tdiu in 2016. Ptsd, anxiety disorder, panic attacks, flash backs. Serious memory loss problems, dissociation issues. I have been diagnosed sleep apnea since also. And no change in my condition even with medication and such. What are my odds of becoming permanent on my exam next year?

  11. If you don't ask some very particular questions, on both the Medical AND Administrative sides, they will never give you pertinent information about anything. If they did, it would create a larger outlay of funding annually.

    Their(The VA) viewpoint is the REAL, Don't Ask – Don't Tell.

    I was retired at 70%, years later Depression added at 50% = 80%. I became unable to work a few years after that, a VSO assisted me in getting IU. I was granted 100%. I also assumed that was it.

    Until I asked for a benefits letter to obtain a fishing license…

    First comment I made was, "What the #=(_$?+/ is, Permanent and Total, and why am I on it?

    The VA is not in existence to provide benefits. They simply sit and wait for you to ask the correct questions.

  12. Fusion of multi level c4-c7 with graft and cage , metal rods consider you total Disability by Social Security and VA ? and multi back operation , high blood pressure , chronic sinusitis . 3 stents in heart , diabetes type2 , Copd . astma bronchitis , VA ??????

  13. I get sick and tired of veteran's crying 'poor me' and VA employees abusing the whole benefit skeleton for their benefit. In other words, PTSD is considered not recoverable by the VA clinics I went to in Colorado. Absolute hogwash. It is not a permanent condition, or at least it shouldn't be. I am amazed at the amount of veterans who feel entitled to a PTSD P&T rating even though they engage in long term relationships, hold down a job, own a home, have friends and family and basically live their lives. And don't get me started on the vets who actually work for the dept. of Veteran's Affairs and have successfully won the benefit. They are triple dipping. Every single person in this world experiences trauma. Trauma is stressful, hard to deal with and can be overwhelming. People are not entitled to disability simply because something 'bad' allegedly happened to them. GET OVER IT and deal with it! There is counselling and excellent programs in the Dept. of VA constructed for victory. True PTSD is invisible to the person who has it but not to anyone else. Someone who is truly totally affected by PTSD wants to get over it as soon as they find out they have it. Because it eliminates you from the present day.I have seen so many veterans pushed into benefits by employees and then spend years chasing a carrot. This is not accidental! And there isn't one of you making these videos who isn't raking in the dough pushing people into the benefit based on jargon the VA wants to see.

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