**§3.342 Permanent and total disability ratings for pension purposes.**

\(a\) *General.* Permanent total disability ratings for pension purposes
are authorized for disabling conditions not the result of the veteran's
own willful misconduct whether or not they are service connected.
(Authority: 38 U.S.C. 1502(a))

\(b\) *Criteria.* In addition to the criteria for determining total
disability and permanency of total disability contained in §3.340, the
following special considerations apply in pension cases:

\(1\) Permanent total disability pension ratings will be authorized for
congenital, developmental, hereditary or familial conditions, provided
the other requirements for entitlement are met.

\(2\) The permanence of total disability will be established as of the
earliest date consistent with the evidence in the case. Active pulmonary
tuberculosis not otherwise established as permanently and totally
disabling will be presumed so after 6 months' hospitalization without
improvement. The same principle may be applied with other types of
disabilities requiring hospitalization for indefinite periods. The need
for hospitalization for periods shorter or longer than 6 months may be a
proper basis for determining permanence. Where, in application of this
principle, it is necessary to employ a waiting period to determine
permanence of totality of disability and a report received at the end of
such period shows the veteran's condition is unimproved, permanence may
be established as of the date of entrance into the hospital. Similarly,
when active pulmonary tuberculosis is improved after 6 months'
hospitalization but still diagnosed as active after 12 months'
hospitalization permanence will also be established as of the date of
entrance into the hospital. In other cases the rating will be effective
the date the evidence establishes permanence.

\(3\) Special consideration must be given the question of permanence in
the case of veterans under 40 years of age. For such veterans,
permanence of total disability requires a finding that the end result of
treatment and adjustment to residual handicaps (rehabilitation) will be
permanent disability of the required degree precluding more than
marginal employment. Severe diseases and injuries, including multiple
fractures or the amputation of a single extremity, should not be taken
to establish permanent and total disability until it is shown that the
veteran after treatment and convalescence, has been unable to secure or
follow employment because of the disability and through no fault of the
veteran.

\(4\) The following shall not be considered as evidence of
employability:

\(i\) Employment as a member-employer or similar employment obtained
only in competition with disabled persons.

\(ii\) Participation in, or the receipt of a distribution of funds as a
result of participation in, a therapeutic or rehabilitation activity
under 38 U.S.C. 1718. (Authority: 38 U.S.C. 1718(f))

\(5\) The authority granted the Secretary under 38 U.S.C. 1502(a)(2) to
classify as permanent and total those diseases and disorders, the nature
and extent of which, in the Secretary judgment, will justify such
determination, will be exercised under §3.321(b).

\(c\) *Temporary program of vocational rehabilitation training for
certain pension recipients.*

\(1\) When a veteran under age 45 is awarded disability pension during
the period beginning on February 1, 1985, and ending on December 31,
1995, the Vocational Rehabilitation and Employment Division will be
notified so that an evaluation may be made, as provided in §21.6050, to
determine that veteran's potential for rehabilitation.

\(2\) If a veteran secures employment within the scope of a vocational
goal identified in his or her individualized written vocational
rehabilitation plan, or in a related field which requires reasonably
developed skills and the use of some or all of the training or services
furnished the veteran under such plan, not later than one year after
eligibility to counseling under §21.6040(b)(1) of this chapter expires,
the veteran's permanent and total evaluation for pension purposes shall
not be terminated by reason of the veteran's capacity to engage in such
employment until the veteran has maintained that employment for a period
of not less than 12 consecutive months. (Authority: 38 U.S.C. 1524(c))

\[26 FR 1586, Feb. 24, 1961, as amended at 26 FR 9674, Oct. 13, 1961; 29
FR 3624, Mar. 21, 1964: 39 FR 14944, Apr. 18, 1974; 46 FR 47541, Sept.
29, 1981; 50 FR 52775, Dec. 26, 1985; 53 FR 23235, June 21, 1988; 55 FR
17271, Apr. 24, 1990; 56 FR 25044, June 3, 1991; 56 FR 65851, Dec. 19,
1991; 58 FR 32445, June 10, 1993; 66 FR 44053, Aug. 22, 2001\]

**Supplement *Highlights* reference**: 8(2c).