Is your veteran totally disabled? Is the rating Permanent? In other words, are they 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.
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 Chapter 35 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.
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! Keeping your original award letter is extremely important in making this determination.
How to determine whether or not the 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.
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.
Should the Veteran 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.
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.