(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 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; 79 FR 2100, Jan. 13, 2014]
Notes of Decisions
Randy L. Pederson v. Robert A. McDonald, 27 Vet. App. 276 (Vet. App. 2015).
· cites it 20× “Pederson did not meet the schedular requirements for 3 TDIU pursuant to 38 C.F.R. § 4.16 (a), and that referral for an extraschedular rating was not warranted because the evidence failed to show that Mr.”
Dingess - Hartman v. Nicholson, 19 Vet. App. 473 (Vet. App. 2006).
· cites it 6× “The Board denied his claim for a TDIU rating after determining that, under 38 C.F.R. § 4.16 (a)-(b) (2001), "there was no evidence to show that the veteran's PTSD symptoms .”
Jerry G. Dalton v. R. James Nicholson, 21 Vet. App. 23 (Vet. App. 2007).
· cites it 9× “He contends where the basis for the TDIU award is satisfaction of the criteria established by 38 C.F.R. § 4.16 , i.e., employability status, and not worsening of the service-connected disability, section 5110(b)(2) is not implicated.”
Ronald L. Evans v. Robert A. McDonald, 27 Vet. App. 180 (Vet. App. 2014).
· cites it 20× “Specifically, he argues that 38 C.F.R. § 4.16 (b) was misapplied and that the Board should have found that the RO clearly and unmistakably should have referred his case to the C&P Director and that such an outcome here would have resulted in a "manifest change in outcome," even…”
Bowling v. Principi, 15 Vet. App. 1 (Vet. App. 2001).
· cites it 8× “Applicable laxa Pursuant to 38 C.F.R. § 4.16 (a) (2000), a TDIU rating will *6 be awarded to a veteran who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” and who has a single service-connected disability “ratable…”
Lonnie A. Overton v. R. James Nicholson, 20 Vet. App. 427 (Vet. App. 2006).
· cites it 8× “In September 1993 he sought, through the same counsel now representing him on appeal, increased ratings for his knee disabilities and maintained that, because his disabilities rendered him unemployable, he should be awarded TDIU under 38 C.F.R. § 4.16 (b) (1993). R. at 260-62.”
Murincsak v. Derwinski, 2 Vet. App. 363 (Vet. App. 1992).
· cites it 9× “Appellant also claims entitlement to a total disability rating for compensation based on individual unemployability under 38 C.F.R. § 4.16 (c) (1991). Murincsak also seeks reversal of the December 5, 1989, BVA decision, because he contends that the BVA failed to comply with its…”
Hector Ortiz-Valles v. Robert A. McDonald, 28 Vet. App. 65 (Vet. App. 2016).
· cites it 7× “This matter was referred to a panel of the Court to address whether the plain language of 38 C.F.R. § 4.16 (a) permits VA to limit consideration of “marginal employment” to only those veterans who are currently employed.”
Cantrell v. Shulkin, 28 Vet. App. 382 (Vet. App. 2017).
· cites it 6× “38 C.F.R. § 4.16 (2016); see Hatlestad v.”
Hatmaker v. United States, 117 Fed. Cl. 560 (Fed. Cl. 2014).
· cites it 14× “5 and 38 C.F.R. § 4.16 (2007). Pl.’s Mot. 24-26; Pl.”
— 38 C.F.R. § 4.16(a) — 13 cases
— 38 C.F.R. § 4.16(b) — 3 cases
— 38 C.F.R. § 4.16(c) — 1 case
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