What Does Not Constitute Permanent and Total Disability (P&T) Under VA Law

Our contributor, an attorney and former VA adjudicator, shares insight on the complexities surrounding VA ratings labeled as Permanent and Total (P&T). While the VA does grant P&T status in many cases, there are key regulatory limitations veterans should understand.

Understanding VA Regulation 38 CFR § 3.340

The relevant regulation is 38 CFR § 3.340(b), titled “Permanent Total Disability.” According to the regulation, permanence of total disability exists when an impairment is “reasonably certain to continue throughout the life of the disabled person.” This encompasses conditions that are completely incapacitating and where the probability of permanent improvement under treatment is remote.

Examples often fitting this definition include uncontrolled epilepsy, multiple sclerosis, muscular atrophy, amyotrophic lateral sclerosis (ALS), and primary lateral sclerosis (PLS). These systemic conditions are generally irreversible and severely debilitating.

The regulation also states that permanent total disability ratings may not be granted due to “any incapacity from acute infectious disease, accident, or injury,” unless a recognized combination of permanent loss of use is present. In other words, short-term or sudden impairments are generally not eligible for P&T status unless long-term, irreversible damage has occurred.

Age as a Factor in Determining Permanence

The VA allows age to be considered when assessing whether a disability is permanent. For instance, if a veteran aged 65 or older suffers from a disabling joint condition such as severe rheumatoid arthritis or ischemic heart disease, the probability of improvement is often low. Therefore, age can support a finding of permanence in such scenarios.

Examples of Conditions Not Considered Permanent

1. Cancer (During Active Treatment)

While most cancers are granted a temporary 100% rating during active treatment, this is not considered permanent. Once remission is achieved, the VA is required by regulation to reevaluate the condition and rate it based on residual effects.

2. Joint Replacements

Knee or hip replacements often receive a temporary 100% evaluation for 6 to 12 months. After this statutory period, the rating is reassessed based on residual symptoms. This is also not considered permanent under VA law.

3. Acute Mental Health Episodes

If a veteran with a service-connected mental health condition experiences a severe but temporary episode—such as a hospitalization due to grief or trauma—the VA may assign a temporary high rating. However, if improvement occurs, the rating will likely be reduced after reevaluation.

4. Individual Unemployability (IU)

VA adjudicators can assign 100% compensation through Individual Unemployability (IU) if a veteran cannot work due to service-connected disabilities. While IU can be designated as permanent, it is not guaranteed. If the veteran returns to substantially gainful employment, the VA can legally sever IU and reduce the rating.

5. Acute Injuries and Hospitalizations

Temporary impairments such as workplace injuries, auto accidents, medication reactions, or brief hospitalizations due to service-connected conditions may warrant a temporary 100% rating. However, unless residuals are long-term and unlikely to improve, these situations are not deemed permanent.

Should Veterans Apply for Increased or Permanent Ratings After an Acute Event?

Veterans hospitalized or experiencing a significant acute episode related to a service-connected condition should still consider applying for an increased rating. While permanent status may not be granted, such claims can trigger temporary evaluations like hospitalization or convalescence benefits.

It’s important for veterans to understand that receiving a 100% rating does not automatically equate to permanent and total disability. A reputable VA claims law firm can help interpret the regulations and advocate for fair consideration based on the unique circumstances of each case.

Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. It reflects the opinion and experience of our contributor, a former VA adjudicator. Veterans should consult with a qualified attorney or accredited representative for personalized guidance regarding their specific VA claims.