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. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. In making such determinations, the following guidelines will be used:
(a) Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability.
(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 Veterans Service Center Manager or the Pension Management Center Manager under § 3.321(b)(2) of this chapter.
(Authority: 38 U.S.C. 1155; 38 U.S.C. 3102)
[43 FR 45348, Oct. 2, 1978, as amended at 56 FR 57985, Nov. 15, 1991; 71 FR 28586, May 17, 2006; 74 FR 26959, June 5, 2009]
Notes of Decisions
Cited in
39
cases (
2 in the last 5 years), 1991–2021 · leading case:
Durden v. Colvin, 191 F. Supp. 3d 429 (M.D. Penn. 2016).
Durden v. Colvin, 191 F. Supp. 3d 429 (M.D. Penn. 2016).
· cites it 3× “” 38 C.F.R. § 4.17 . Sections 4.16 and 4.17 exclude marginal employment from the definition of substantial gainful occupation using standards such as income level or protected employment in a sheltered workplace.”
McCleary v. Colvin, 187 F. Supp. 3d 497 (M.D. Penn. 2016).
· cites it 4× “” 38 C.F.R. § 4.17 . Sections. 4.16 and 4.17 exclude marginal employment from the definition of substantial gainful occupation using standards such as income level or protected employment in a sheltered workplace.”
Robert J. Ingram v. R. James Nicholson, 21 Vet. App. 232 (Vet. App. 2007).
“See 38 C.F.R. § 4.17 (2006). If the percentage requirements are not met, a veteran may nevertheless be awarded pension if he or she is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors.”
Grantham v. Brown, 8 Vet. App. 228 (Vet. App. 1995).
· cites it 3× “The same percentage requirements are used for total disability ratings for pension purposes, see 38 C.F.R. § 4.17 (1994), but the regulation provides that “all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable,…”
Butts v. Brown, 5 Vet. App. 532 (Vet. App. 1993).
“§ 1521 (a) and 38 C.F.R. § 4.17 , a disability is permanent and total, Wilson v.”
Talley v. Derwinski, 2 Vet. App. 282 (Vet. App. 1992).
“38 C.F.R. § 4.17 (1991) (boldface italics added).”
Waddell v. Brown, 5 Vet. App. 454 (Vet. App. 1993).
· cites it 2× “The Board also failed to adjudicate a claim for non-service-connected pension under 38 C.F.R. § 4.17 (1992) and on an extraschedular basis under 38 C.”
Odiorne v. Principi, 3 Vet. App. 456 (Vet. App. 1992).
· cites it 2× “See 38 C.F.R. § 4.17 (1991). In evaluating appellant’s pension claim, the Board must also give more attention to the decision of the Department of Health and Human Services (Social Security).”
Collier v. Derwinski, 1 Vet. App. 413 (Vet. App. 1991).
“§§ 521 , 502 [and] 38 C.F.R. §§ 4.17 , 3.321(b)(2), 3.340, 3.”
Stanton v. Brown, 5 Vet. App. 563 (Vet. App. 1993).
“§ 1521 (a) (West 1991) and 38 C.F.R. §§ 4.17 (1992), 3.321(b)(2). See 38 C.”
Kellar v. Brown, 6 Vet. App. 157 (Vet. App. 1994).
“The Board also failed to adjudicate a claim for non-serviee-eonnected pension under 38 C.F.R. § 4.17 (1993). Since appellant had service during a period of war, see 38 U.”
Hermogenes v. Brown, 9 Vet. App. 75 (Vet. App. 1996).
· cites it 2× “at 219) citing the preamble to a proposed revision of 38 C.F.R. § 4.17 implementing Public Law 101-508 : Public Law 101-508 eliminated the presumption of pension eligibility at age 65 for all claims filed after October 31, 1990_ If pension entitlement is terminated for any…”
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