Veterans PTSD Reference Manual

Unemployability

 

 

The unemployability rules are a bit complicated and confusing. Below I have listed important parts of the CFR along with my comments.

 

The whole point is that if your PTSD is so severe that you can no longer work you may be able to receive 100% disability payment for being unable to work even if you only have, say, a 60% PTSD disability. It will help if you already are drawing Social Security, have been out of work for some months or years, and have been turned down for Vocational Rehabilitation.

 

 

According to 38 CFR 4.16  (Ratings for compensation based on unemployability) “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…………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. (For the year 2002 this amount was $9359 for a person 65 and under and $8628 for a person over 65).”

 

Authors Note: Normally you will be sent a VA Form 21-8940 (Veteran's Application For Increased Compensation Based on unemployability), at the same time you reach the above disability percentages. However, you may submit one at any time.

 

Although the monetary benefit is the same, there is an important distinction between a combined scheduler 100% and 100% due to individual unemployability. If the 100% is by the schedule, the veteran may, if able, hold a regular job. If the 100% is due to being unemployable, he/she may not engage in anything other than marginal employment.

 

 

Note that section (b) of 38 CFR 4.16 says “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.”

 

Authors Note: According to this paragraph you can apply for unimployability even if you do not meet the above stated disability percentages (60% and 70%).

 

And then 38 CFR 4.17 states “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.” And “(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 3.321(b)(2) of this chapter.”(38 CFR 3.21(b)(2) states “Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule but is found to be unemployable by reason of his or her disability(ies), age, occupational background and other related factors, the following are authorized to approve on an extra-schedular basis a permanent and total disability rating for pension purposes: the Adjudication Officer; or where regular schedular standards are met as of the date of the rating decision, the rating board.”)

Now consider 38 CFR 3.340 which states “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. Total disability may or may not be permanent.” And “Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.”

 

Authors Note: Total and permanent does not mean total and permanent, as relates to unemployability. If you return to work (for a year or more), you can loose your unemployability status.