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Cite: 38cfr4.16 Tdiu


allan
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[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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