Permanent and Total from cck-law..com

[Tbird]

 

1:10 What is Permanent and Total Disability?

2:05 Conditions that automatically receive a permanent and total rating (P&T)

2:32 Conditions less likely to receive P&T

4:29 How to find out if your VA rating is permanent

6:03 Is there a VA form to apply for Perm and Total status?

6:39 Viewer Question: If you have permanent and total Social Security Disability Insurance (SSDI), are you automatically entitled to P&T disability at the VA?

8:03 If you receive Total Disability for Individual Unemployability (TDIU), are you permanent and total?

8:26 The advantages of having Permanent and Total VA Disability Other Protections from VA Rating Reductions

10:26 Stabilized Ratings

11:26 Continuous Ratings

12:57 What to do if VA proposes a rating reduction

16:03 Final Thoughts & Tips

https://cck-law.com/news/newsfaq-friday-permanent-and-total-pt-disability/

 

[Holllie Greene]

Thank you Ms. Tbird, this is excellent information.  

[vgorman0306]

I’m still trying to get the hang of this. 

My C and P examiner stated that my asthma precludes me from any physical occupation. They did find a medical nexus. So does that mean they found me completely disabled? Or is that wording really not of any matter?  

[Berta]

Thanks for this link Tbird.

I can only add one thing- 

“Entitlement to a permanent total disability rating requires a Veteran’s disability to be both permanent and total. 38 C.F.R. § 3.340. Pursuant to VA regulations, a total disability may be established in two ways.

First, 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.  38 C.F.R. § 3.340(a)(1).  Second, a total disability may also be assigned where a Veteran’s service-connected disabilities

are rated 100 percent disabling under the rating schedule. 38 C.F.R. § 3.340(a)(2). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 3.340(b). 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. Id. The age of the disabled person may be considered in determining permanence. Id.”

Source: Board of Veterans Appeals   

https://www.va.gov/vetapp18/files6/18107434.txt

I have filed a White House Hot Line complaint on this very description of Permanence, against the Director of the Buffalo VARO.

My husband's autopsy revealed 6 area of ischemic TIA brain damage and major brain stem stroke, and the death certificate revealed it was a contributing cause of his death.An MRI revealed he had "significant brain atrophy, "inconsistent with his age ( he was only 42 when the MRI was done.)

All of my unread evidence , much from VA doctors, supports that he was 100% P & T under 1151 due to the stroke , except the director of my VARO said he was not Permanently disabled by the stroke  at death and that my claim was "OVER".

She had no medical evidence whatsoever for that statement. This was in a phone call she made to me. I told her that neither the veteran and I are unaware of some sort of miraculous stroke CURE the VA performed, yet VA never advised the veteran of it.Her statement goes against all VA case law and certainly all of the medical evidence they VA has.

This issue will be taking up much of my time this coming week. 

I have mentioned this here many times- because I have never heard of anything like this before, and I wonder how many other widows were given the same BS.

Death makes every continuous 100% SC or 1151 as if SC rating- A TOTAL and PERMANENT Rating.

It was never an issue in their 100% P & T award for SC PTSD ,sent posthumously after my husband died.

 

 

 

 

 

 

 

 

 

Edited July 6, 2019 by Berta (see edit history)

[kanewnut]

On 7/5/2019 at 6:08 PM, vgorman0306 said:

my asthma precludes me from any physical occupation. They did find a medical nexus. So does that mean they found me completely disabled?

Not in my opinion. It sounds to me that your asthma prevents any physical occupation. It does not prevent any sedentary occupation. 

At your age just try to imagine collecting disability for the next sixty years while sitting on the couch. I think that is a recipe for depression or insanity. I encourage you to get all the disability you are entitled to, but to also find something to do with your life.

[vgorman0306]

10 hours ago, kanewnut said:

Not in my opinion. It sounds to me that your asthma prevents any physical occupation. It does not prevent any sedentary occupation. 

At your age just try to imagine collecting disability for the next sixty years while sitting on the couch. I think that is a recipe for depression or insanity. I encourage you to get all the disability you are entitled to, but to also find something to do with your life.

I’m really not gunning for 100% disability. I do want a career and I’m finally finishing up college after three failed attempts due to my asthma. Thank you for your insight, though! Much much appreciated. 

[vetquest]

Go for what you can get due to your condition and then see where it falls out.  You are not stopped from working unless you receive less than 100% and are on UI or unemployable.  UI is something you request.  If you receive 100% you can still work.  Do not ask me how this works because I do not know and I do not really know anyone else that does.  

As far as spending your life on the couch, there are many things you can do.  I am looking at becoming a VA agent.

[GeekySquid]

1 hour ago, vetquest said:

UI is something you request.

@vetquest Not trying to quibble but that is not 100% accurate. You can request IU absolutely and should if it applies to you, however the VA raters are supposed to infer a potential claim for IU when certain factors are present.

For example if you are 70% PTSD and your VA claim file includes frequent job loss due to your PTSD-related behaviors at work. Or say an arrest record related to PTSD that subsequently caused you to lose your job(s).

A request to increase compensation rating is also to be considered a request for TD/IU.

TD/IU is very complicated in and of itself and the VA frequently makes the wrong decision on IU and frequently fails to properly infer and investigate potential IU.

1 hour ago, vetquest said:

If you receive 100% you can still work.  Do not ask me how this works because I do not know and I do not really know anyone else that does.  

This problem comes in with a general misunderstanding of what VA compensation is legally based on.  In general the word "disabled" has the connotation that goes against being able to work, but that comes from the medical side and civilian programs like SSDI.

VA compensation however is based on a narrow and Veteran specific legal standard that pays compensation for harms caused by the service that hamper THE AVERAGE PERSON from making an income. We are being compensated for those harms, not because we are disabled in the general sense, though many of us are also disabled in the general sense.

In other words, legally, a 100% Schedular rating is NOT a statement that a veteran cannot work, just that their earning capacity is impaired compared to the mythical AVERAGE PERSON. This is the design and intention of Congress.

We have to keep in mind these rules were written in 1945 and have not changed significantly since then. Congress created a non-linear mathematical model (the infamous VA math) that allows for a serial reduction (for compensation purposes) in what the law considers a veterans ability to earn compared to what the AVERAGE PERSON earns who does not have the harms the veteran has experienced

Think of the the typical national work conditions in 1945. Mostly Blue Collar, Agrarian, and Manufacturing/building trades and very few white collar jobs compared to today. Working at home or over the internet was completely unknown in those days. MH conditions and known pre-existing conditions acerbated by service, were originally not compensable as they were considered to be flaws inherent to the individual. Today medical knowledge has changed that thinking.

The mythical Average Person is considered 100% capable of performing that type of work. A Veteran who has a 20% rating still has 80% of that capacity based on the 1945 standards and the VA laws compensate the Veteran for that missing 20%.

Since VA math allows veterans to reach a 100% rating on the schedule, a.k.a. a schedular rating, that 80% capacity remainder can be "chipped" away by having multiple harms that are rated.

This is a legal fiction and Congress intentionally created it account for the multiple seen and unseen harms that can be unique to Veterans. If it was not this way, more veterans would be living in poverty than are today.

Social Security Disability on the other hand is about being physically or mentally unable to perform any but the most primitive/low paying job functions. A veteran who is 100% schedular for physical or mental limitations can apply for SS disability and the VA award is strong evidence that they are in fact disabled under the legal definition SS requires.

It is confusing, but if you stop thinking of our ratings as levels of disability and instead think of them as compensation awarded for harms it makes things easier to understand.

https://www.hadit.com/can-100-percent-disabled-veteran-work/

https://taskandpurpose.com/5-things-you-didnt-know-about-100-disability-ratings

https://www.ssa.gov/people/veterans/100pt.html

 

[GeekySquid]

On 7/5/2019 at 3:08 PM, vgorman0306 said:

I’m still trying to get the hang of this. 

@vgorman0306 some things to take note of

1) the C&P exam amounts to a review of your records and an interview. They are to opine if your condition is "more likely than not" the result of your military service, a.k.a. the nexus.

2) The C&P does NOT grant you anything. The raters make that call. Not to be a buzzkill but we often see a veteran say the C&P said they were Service Connected and then the rater nixes an award or grants 0%. This means you have more stuff to fight.

3) A 100% Schedular rating is almost always better than a 100% Rating under TDIU. This seems to be your first claim so the reasons why TDIU might work in your favor are not really relevant at this moment.

4) A 100% schedular rating does NOT legally prevent you from working in any way, shape, or form.

5) Asthma has many triggers including environmental factors in office spaces. We don't know your case factors but they might be significant enough that even with getting your degree you might not successfully be able to maintain employment.

6) TDIU limits income to two different paths. Nominal income which is equated to the annual poverty level wage or Protected Work Environment which is a legal construct. If you are rated as TDIU and still want to work, it is legally possible to create a PWE but I would highly suggest getting with a competent VA-registered Attorney to explore that option.

A PWE is a situation where for example your sister owns a company and creates a job designed around your specific disabilities. A job that if you were not the employee would not exist or would not have the latitude that you have such as working from home or working a bizarrely modified schedule. In a PWE you can earn more than the Poverty Wages of the other path, but earning several hundred K a year would likely get your TDIU award reviewed.

7) on TDIU your income is monitored by the VA via the Social Security Administration. As I understand it TDIU folks no longer have to make the annual report, VA automatically pulls that data from SSA.

8 ) every rating that is not P&T is subject to review. These reviews could be 1, 3 5, years as the VA decides. I don't know for sure what makes them decide on one interval over another.

9) this is just a suggestion and others may disagree. The new AMA process has changed some things in how the VA reports our status. One that seems to be happening is that on Ebenefits under the Disability link, it appears that once the VA has sent the award letter, that link updates immediately. This would be new. Under the AMA forum here we have some people reporting on this.

If it suits you please check like once a day or every couple days to see when your status there change; do that for other veterans. With Legacy and RAMP processes not open to new claims, gathering that information is very helpful. For years we have all had to "wait" for the BBE to know what the VA decided. The mail can take weeks and add stress. If it holds true that they are now immediately reporting on that link, that can alleviate a lot of unnecessary stress.

Good luck and let us know what happens.