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VA Regulation 38 C.F.R. §4.16 – Total disability ratings for compensation based on unemployability of the individual.

I often write about Individual Unemployability claims for veterans and make reference to VA’s Unemployability regulation, 38 C.F.R. Section 4.16.  Anyone who is considering filing for or appealing a claim related to Total Disability due to Individual Unemployability (TDIU) should read the regulation.  Here is the full text of VA’s unemployability law directly from the Code of Federal Regulations:

38 C.F.R. §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(a))

(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 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.

History:  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; 79 FR 2100, Jan. 13, 2014

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    I am receiving VA Disability Com due to unemployability. Does my benefit continue to my wife after my death

    Your spouse would have to file for VA Dependency and Indemnity Compensation (“DIC”) when you die. It is not the same amount of money, but depending on how long you are totally disabled or if you die because of your service-connected conditions, she can be paid a monthly DIC benefit by the VA.

    I am so upset…..I have struggled since age 27 in 1987 with my hearing. It was not until 2013 that the VA FINALLY awarded me with 50% bilateral hearing loss. I have 10% tinnitus awarded in 2009. Last year I had to quit my job cuz I could NOT hear the boss and could not wear hearing aids due to weather conditions. I was a mailman. This past year I have taken 4 hearing tests…all show more loss of hearing….I have developed major insomnia, anxiety and headaches so I put in for a hearing increase with the secondaries. The VA DENIED every damn thing and is in the process of taking my bilateral HL down to 0%. I go to the VA audiologist every month and I have had to have lights installed in my house for the alarms, doorbell, etc with a sonic alarm for waking. The VA has done all of this for me plus given hearing aids, transmitters, rope neck bluetooth, etc. June 8, 2017 I was awarded SSDI for Deafness as Primary. Neuropathy and inflammation of the joints as secondary and the VA is putting that claim off as well. Every time I return to the civilian dr to get NOTES (like a preschooler) I have to pay more money. I am so sick of this. The VA has poked me in the butt so many times……I am one of the few with insurance and they run that in the ground with charges and now BVA wants to take what is REAL away. My hearing is everything and I am at the end of my rope. I am SICK of the way the VA claims treat good people.

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