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§ 4.16 Total Disability Ratings For Compensation Based On Unemployability Of The Individual.

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allan

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  • HadIt.com Elder

e-CFR Data is current as of April 28, 2009

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart A—General Policy in Rating

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§ 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]

Source: http://ecfr.gpoaccess.gov/cgi/t/text/text-....11&idno=38

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  • HadIt.com Elder
(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.

It would be nice if the VA would follow this regulation but they don't.

Edited by Pete53
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It would be nice if the VA would follow this regulation but they don't.

My orriginal claim for IU was made on this case as my service connected disabilities were rated at 60%. But when they said their decision was a clear and unmistakenly irronious, they took it away. Now that one of my sc is rated 70% and is the direct cause of my IU, I sit here waiting for a decision from RO on restoration of my IU and my compensation to increase to 100% equivilent.

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  • HadIt.com Elder

The only rule the VA follows all the time is "screw the vet any chance you get". They follow that rule to the letter.

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I see the DVA does follow it's own rules. As with all issues, the details are what most people don't want to be bother with. You have to be rated for a single issue at 60% or for many issues with an overall rating of 70% (and that includes a 40% rating for a single issue). If you have a combined 60% rating or a combined 70% but don't have a single issue of 40%, you don't meet the criteria.

Pete53,

You can quote any reg you want, but if you don't list the criteria, your missing the boat. Again check out § 4.16 Total disability ratings for compensation based on unemployability of the individual. This is a self explainatory reg. We all want to see what we want to see. Your orginal statement states you had 60% for your disabilities (plural). It has to be 60% for a single issue. You didn't meet the criteria. Your upset because the DVA didn't follow the rules you thought they should follow. With what limited information you provided, they followed the correct rules. Having done over 4000 claims for veterans, I know that the details are everything and if you ignore the details you are going to fail or not get what you truly deserve.

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  • HadIt.com Elder

etihwr - it appears you failed to mention the second part of 4.16, that basically states that if your SC'd disability(s) keep you from working you should be rated TDIU but via the VACO. jmo

pr

I see the DVA does follow it's own rules. As with all issues, the details are what most people don't want to be bother with. You have to be rated for a single issue at 60% or for many issues with an overall rating of 70% (and that includes a 40% rating for a single issue). If you have a combined 60% rating or a combined 70% but don't have a single issue of 40%, you don't meet the criteria.

Pete53,

You can quote any reg you want, but if you don't list the criteria, your missing the boat. Again check out § 4.16 Total disability ratings for compensation based on unemployability of the individual. This is a self explainatory reg. We all want to see what we want to see. Your orginal statement states you had 60% for your disabilities (plural). It has to be 60% for a single issue. You didn't meet the criteria. Your upset because the DVA didn't follow the rules you thought they should follow. With what limited information you provided, they followed the correct rules. Having done over 4000 claims for veterans, I know that the details are everything and if you ignore the details you are going to fail or not get what you truly deserve.

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