tdiu What Is Needed To Be Awarded P & T?

[Cherie33]

Hi All,

I was recently awarded TDIU and received the offical VA Award letter. The award letter stated that in Approximately 22 months from now or April 2010 the VA will review the symptoms and severity of my recurrent major depression with psychotic features.

So, what makes me eligible to be awarded P & T? What do I need to do at this point?

Also, do I need to be P & T to be able to shop on the base?

Thanks,

Cherie33

[mountain tyme]

Department of Memorandum

Veterans Affairs

Date: November 25, 2005 VAOPGCPREC 5-2005

From: General Counsel (022)

Subj: Eligibility for a "Temporary" Total Disability Rating Based on Individual Unemployability—38 C.F.R. § 4.16(B)

To: Chairman, Board of Veterans’ Appeals (01)

....

(Emphasis added.) Further, 38 C.F.R. § 4.15 distinguishes between “total disability” and “permanent total disability” in the following manner:

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; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.

The significance of the distinction between “total disability” and “permanent total disability” is made apparent by 38 C.F.R. §§ 3.341 and 4.16, which authorize VA to assign “total disability ratings” for purposes of service-connected disability compensation, and 38 C.F.R. §§ 3.342 and 4.17, which authorize VA to assign “permanent and total disability ratings” for purposes of nonservice-connected pension. The provision in 38 C.F.R. §§ 3.342 and 4.17 for “permanent” total disability implements the statutory requirement that pension be paid only if a veteran is “permanently and totally disabled.” 38 U.S.C. § 1521(a). The absence of any similar requirement in 38 C.F.R. §§ 3.341 and 4.16 for “permanent” total disability clearly indicates that VA did not intend to require a finding of permanence as a condition of entitlement to a TDIU rating for compensation purposes. Russello v. United States, 464 U.S. 16, 23 (1983) (“where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts inten-tionally and purposely in the disparate inclusion or exclu¬sion."); Smith v. Brown, 35 F.3d 1516,1523 (Fed. Cir. 1994) (rules of statutory construction apply equally to interpretation of regulations). Accordingly, we conclude that 38 C.F.R. § 4.16 permits VA to award TDIU ratings based on temporary (i.e., non-permanent) inability to follow a substantially gainful occupation.

.....

Tim S. McClain

Attachment: C-file

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

§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.

( 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.

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

[26 FR 1585, Feb. 24 1961, as amended at 46 FR 47541, Sept. 29, 1981]

[mountain tyme]

This table will help you understand what benefits you and your eligible dependents are authorized to receive from the VA. If you have any questions or concerns please contact us. Or you may contact the VA Regional Office at (800) 827-1000 or the VA Medical Center in Minneapolis at (866) 414-5058.

Service Connected means that you are in receipt of a disability compensation because you (the veteran) were disabled by injury or disease that incurred or was aggravated during military service. The service of the veteran must have been terminated through separation or discharge under conditions that were other than dishonorable.

***If you are 0% and greater service connected

• Home Loan Guaranty Certificate of Eligibility

• Service Disabled Veterans Life Insurance. Must apply within 2 years from initial notice of service connection of a disability.

o Call (800) 669-8477 for more information about

o Waiver of National Service Life Insurance premiums

o National Service Life Insurance total disability income provisions

• Outpatient Treatment for: (1) service connected condition, and (2) for all medical conditions if enrolled in VA healthcare program. Co-payment for treatment may apply for non-service connected conditions.

• Travel allowance for scheduled appointments for care of the service connected condition that the VA Medical Centers and VA Out- Patient Clinics. Eligibility based on veteran's family income.

• Medical treatment in non-VA facilities for service connected condition. Certain restrictions apply.

• 10 Point Civil Service Preference. (10 points added to Civil Service test score.)

• Clothing Allowance for veterans who use or wear a prosthetic or orthopedic appliance (artificial limb, braces, wheelchair) or use prescribed medications for skin condition which tend to wear, tear, or soil clothing.

• Temporary increased total evaluation with payment at the 100% rate based on hospitalization for a service connected disability necessitating at least one month of convalescence or immobilization by cast, without surgery of one major joint or more.

• Dental treatment for: (1) service connected dental condition, OR (2) follow-up dental treatment which was begun while hospitalized at a VA Medical Center, OR and former Prisioner of War with 90 consecutive days, or more, of confinement. Some restrictions may apply based on availability of services.

***If you are 10% and greater service connected All of the above and:

• Vocational Rehabilitation which includes full medical and dental. (Chapter 31)

• Funding fees waived for Home Loan Guaranty.

***If you are 30% and greater service connected All of the above and:

• Additional compensation for dependents. (Spouse, children, dependent parents)

• Non-competitive Civil Service appointment.

• Affirmative action in employment.

• Travel allowance for scheduled appointments for care of all medical conditions (except dental) at VA Medical Centers and VA Out-Patient Clinics.

• Additional allowance for a spouse who is a patient in a nursing home. (Either helpless, blind, or so nearly helpless as to require the aid and attendance of another person.)

***If you are 40% and greater service connected All of the above and:

• Automobile Assistance. (One-time payment up to $8,000). Veteran must have service connected loss of one or both hands or feet, or permanent loss of use, or permanent impairment of vision of both eyes. (For information, contact Prosthetics, Minneapolis VAMC)

• Special Adaptive Automobile Equipment. Veteran must have service connected ankylosis (immobility) of one or both knees, or one or both hips.

***If you are 50% and greater service connected All of the above and:

• Medical treatment for any condition (except dental). Enrollment in the VA Health care program is encouraged but not required for treatment of a service connected condition.

• No co-payments for treatment at a VA Medical Center and Out-Patient Clinics.

• No co-payments on Prescription Drugs for service connected disabilities. Includes prescriptions written by a non=VA physician providing care under an authorized fee basis agreement with the VA Medical Center. (NOTE: Prescriptions written by non-VA physicians may be filled through the VA pharmacy for and (1) WW I veteran (2) veteran entitled to Aid and Attendance or Housebound benefits regardless of evaluation percentage. A co-payment will be charged if the prescription is not for a service connected disability.

• Medical treatment in non-VA facilities for any medical condition.

***If you are 60% to 90% with Individual Unemployability and greater service connected All of the above and:

• Increased compensation, payable at the 100% rate, based on Individual Unemployability.

• Dental treatment

***If you are Permanent and Total Evaluation Either 100% OR 60% 90% with Individual Unemployability All of the above and:

• Educational Assistance for Dependents. (Chapter 35)

• Civilian Health And Medical Program For Dependents/Survivors. (CHAMPVA)

• Commissary and Exchange privileges

• Specially Adapted Home. Grant up to $43,000. Building, buying or remodeling adaptive homes or paying indebtedness on existing home. Veteran must be entitled to compensation for permanent and total service connected disability due to: (1) loss or loss of use of both lower extremities or disability which includes (a) blindness in both eyes, having only light perception, plus (B) loss or loss of use of one lower extremity OR loss or loss of use on one lower extremity together with (a) residuals or organic disease or injury, or ( the loss or loss of use of one upper extremity which so affects the functions of balance or propulsion as to preclude locomotion without using braces, canes, crutches, or wheelchair.

• Special Adapted Homes. Grant up to $6,500. Handicap adaptations to a veteran's residence disability. Veteran must be entitled to compensation for permanent and total service connected disability due to: blindness in both eyes with 5/200 visual acuity or less, OR anatomical loss or loss of use of both hands.

• Veterans Mortgage Life Insurance. Decreasing term mortgage insurance up to $90,000 for veterans who have received a Specially Adapted Housing grant and have an existing mortgage.

***If you are 100% Permanent and Total Evaluation service connected All of the above and:

• Emergency treatment in non-VA facilities if VA facilities are not available. Veteran or "SOMEONE" must contact the VA Fee Basis immediately after the veteran is stabilized!

[Hoppy]

Cherie33,

They do issue P&T for psych claims. They must have intrepeted something in the reports to indicate that your condition might improve. Re-read the medical reports and see if there are any comments about the expectations for improvement. If it is not addressed and you want to get full privlidges earlier tell your shrink to write a report that your condition is not expected to imptove. It will probably require an appeal. Ask your SO what happened.

The reports that I have seen for P&T for psych claims are for folks who have not worked for a long period of time due to the disability.

[Jayg]

***If you are 30% and greater service connected All of the above and:

• Additional compensation for dependents. (Spouse, children, dependent parents)

"Additional" what kind of benefits for dependents of vets rated at 30% ??? B)

[Cherie33]

Jayg,

When you are 30% or greater the VA pays you for each of your dependents.

Cherie33

[Teac]

In layman terms....

in order to be considered T/P you need to show that it is unlikely that your condition will change.

Apparently the va rated thinks you condition can get better in the future.. so it was decided not to grant T/P at the time of the rating,

Usually the va will have decided when they are going to do the future exam, at the same time they make the decison to grant you TDIU , and not make it T/P.