HadIt.com Elder allan Posted July 28, 2008 HadIt.com Elder Share Posted July 28, 2008 (edited) [Code of Federal Regulations] [Title 38, Volume 1] [Revised as of January 1, 2007] From the U.S. Government Printing Office via GPO Access [CITE: 38CFR4.16] [Page 372-373] 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. (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 [[Page 373]] 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] Edited July 28, 2008 by allan Link to comment Share on other sites More sharing options...
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allan
[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR4.16]
[Page 372-373]
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.
(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
[[Page 373]]
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]
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