[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38 CFR 4.1]
[Page 359-360]
TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I --
DEPARTMENT OF VETERANS AFFAIRS
PART 4 -- SCHEDULE FOR RATING DISABILITIES--Table of Contents
Subpart A -- General Policy in Rating
Sec. 4.16 Total disability ratings for compensation
based on unemployability of the individual.
Sec. 4.17 Total disability ratings for pension based on unemployability
and age of the individual.
Sec. 4.18 Unemployability.
Sec. 4.15 Total disability ratings.
The ability to overcome the handicap of disability varies widely
among individuals. The rating, however, is based primarily upon the
average impairment in earning capacity, that is, upon the economic or
industrial handicap which must be overcome and not from individual
success in overcoming it. However, full consideration must be given to
unusual physical or mental effects in individual cases, to peculiar
effects of occupational activities, to defects in physical or mental
endowment preventing the usual amount of success in overcoming the
handicap of disability and to the effect of combinations of disability.
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 following will be considered to be permanent
total disability: the permanent loss of the 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 permanently bedridden. Other total
disability ratings are scheduled in the various bodily systems of this
schedule.
Sec. 4.16 Total disability ratings for compensation based on unemployability
of the individual.
(a) Total disability ratings for compensation may be assigned, where
the schedular rating is less than total, when the disabled person is, in
the judgment of the rating agency, unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities: Provided That, if there is only one such disability, this
disability shall be ratable at 60 percent or more, and that, if there
are two or more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional disability to
bring the combined rating to 70 percent or more. For the above purpose
of one 60 percent disability, or one 40 percent disability in
combination, the following will be considered as one disability: (1)
Disabilities of one or both upper extremities, or of one or both lower
extremities, including the bilateral factor, if applicable, (2)
disabilities resulting from common etiology or a single accident, (3)
disabilities affecting a single body system, e.g. orthopedic, digestive,
respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple
injuries incurred in action, or (5) multiple disabilities incurred as a
prisoner of war. It is provided further that the existence or degree of
nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages
referred to in this paragraph for the service-connected disability or
disabilities are met and in the judgment of the rating agency such
service-connected disabilities render the veteran unemployable. Marginal
employment shall not be considered substantially gainful employment. For
purposes of this section, marginal employment generally shall be deemed
to exist when a veteran's earned annual income does not exceed the
amount established by the U.S. Department of Commerce, Bureau of the
Census, as the poverty threshold for one person. Marginal employment may
also be held to exist, on a facts found basis (includes but is not
limited to employment in a protected environment such as a family
business or sheltered workshop), when earned annual income exceeds the
poverty threshold. Consideration shall be given in all claims to the
nature of the employment and the reason for termination.
(Authority: 38 U.S.C. 501)
(b) It is the established policy of the Department of Veterans
Affairs that all veterans who are unable to secure and follow a
substantially gainful occupation by reason of service-connected
disabilities shall be rated totally disabled. Therefore, rating boards
should submit to the Director, Compensation and Pension Service, for
extra-schedular consideration all cases of veterans who are unemployable
by reason of service-connected disabilities, but who fail to meet the
percentage standards set forth in paragraph (a) of this section. The
rating board will include a full statement as to the veteran's service-
connected disabilities, employment history, educational and vocational
attainment and all other factors having a bearing on the issue.
[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989;
55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct.
8, 1996]
Sec. 4.17 Total disability ratings for pension based on unemployability
and age of the individual.
All veterans who are basically eligible and who are unable to secure
and follow a substantially gainful occupation by reason of disabilities
which are likely to be permanent shall be rated as permanently and
totally disabled. For the purpose of pension, the permanence of the
percentage requirements of Sec. 4.16 is a requisite. When the percentage
requirements are met, and the disabilities involved are of a permanent
nature, a rating of permanent and total disability will be assigned if
the veteran is found to be unable to secure and follow substantially
gainful employment by reason of such disability. Prior employment or
unemployment status is immaterial if in the judgment of the rating board
the veteran's disabilities render him or her unemployable. In making
such determinations, the following guidelines will be used:
(a) Marginal employment, for example, as a self-employed farmer or
other person, while employed in his or her own business, or at odd jobs
or while employed at less than half the usual remuneration will not be
considered incompatible with a determination of unemployability, if the
restriction, as to securing or retaining better employment, is due to
disability.
(b) Claims of all veterans who fail to meet the percentage standards
but who meet the basic entitlement criteria and are unemployable, will
be referred by the rating board to the Adjudication Officer under
Sec. 3.321(b)(2) of this chapter.
(Authority: 38 U.S.C. 1155; 38 U.S.C. 3102)
[43 FR 45348, Oct. 2, 1978, as amended at 56 FR 57985, Nov. 15, 1991]
Sec. 4.17a Misconduct etiology.
A permanent and total disability rating under the provisions of
Secs. 4.15, 4.16 and 4.17 will not be precluded by reason of the
coexistence of misconduct disability when:
(a) A veteran, regardless of employment status, also has innocently
acquired 100 percent disability, or
(b) Where unemployable, the veteran has other disabilities
innocently acquired which meet the percentage requirements of Secs. 4.16
and 4.17 and would render, in the judgment of the rating agency, the
average person unable to secure or follow a substantially gainful occupation.
[40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]
Sec. 4.18 Unemployability.
A veteran may be considered as unemployable upon termination of
employment which was provided on account of disability, or in which
special consideration was given on account of the same, when it is
satisfactorily shown that he or she is unable to secure further
employment. With amputations, sequelae of fractures and other residuals
of traumatism shown to be of static character, a showing of continuous
unemployability from date of incurrence, or the date the condition
reached the stabilized level, is a general requirement in order to
establish the fact that present unemployability is the result of the
disability. However, consideration is to be given to the circumstances
of employment in individual claims, and, if the employment was only
occasional, intermittent, tryout or unsuccessful, or eventually
terminated on account of the disability, present unemployability may be
attributed to the static disability. Where unemployability for pension
previously has been established on the basis of combined service-
connected and nonservice-connected disabilities and the service-
connected disability or disabilities have increased in severity,
Sec. 4.16 is for consideration.
[40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]
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