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38CFR4.15 Total Disability

38CFR4.15 Total Disability

From 38 CFR 4 Schedule for Rating Disabilities

38CFR4.15 Total disability ratings.

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. 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; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.

38CFR4.16 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 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]

38CFR4.17 Total disability ratings for pension based on unemployability and age of the individual.

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]

VA Compensation and Pension Exam – Do’s and Don’ts

VA Compensation and Pension Exam – Do’s and Don’ts

A Guideline for your VA compensation and pension exam

A VA Compensation and Pension Examiners’ perspective relating to psychiatric exams. It is a good guideline for all exams, but they only did psych exams.
Authors Notes
The VA has examined me for multiple problems, and this is my format when I go to be examined. A little common sense and clarity of thinking will go a long way towards getting you what you are entitled to.
This person is going to judge you. It’s their job, and that is why you are there. To be adjudicated fairly. How would you like to be remembered? A skuzzy stereotypical veteran? Or a troubled one who is doing the best they can? Steve A. Neff MSW 
Do not talk about alcohol or drug-related issues. You are not there to be assessed for those problems. You are there to be evaluated for your psychiatric functioning as today relates to your service history. If the examiner asks about alcohol or drugs, politely remind them that you are not there for those issues if you’ve ever had them, but for how impaired you are in your daily functioning. It’s best to avoid even talking about them. Got a VA horror story? I can tell you a worse one. Don’t waste your time with how badly you believe you’ve been mistreated. The examiner only has a short time to figure out how impaired you are, and they need the facts. Incoherent, concise sentences, and not rambling rants that lead nowhere.
Just The Facts
Answer the questions to the best of your ability. If you don’t know, say so. This is nearly a no-brainer but be honest. Don’t embellish your stories with fanciful tales. Just the facts, please.
Be able to document everything you tell the examiner. If possible, have letters from people you served with, unit diary copies of incidents during your time and space, and letters from family members. You may run into someone like me who checked stories out. 
Family member letters usually don’t add much weight to your case because families are there to support you, and examiners understand that.
If sleep is a problem, don’t sleep the night before. Go in on the ragged edge of tired out. But do your best not to be rude and insensitive. Payback in a VA C&P exam is you lose. Not all examiners are that way, but I have met a few that should not have been examiners.
When responding to examiners, you need to pick the worst moment relating to that question. You need to be rated for the worst times you have had. I always chose a really bad day and related all of my answers to that day. The day I could not sleep, was anxious and startled easily, was grouchy to my wife and friends, felt like my heart was coming out of my chest, and nothing went right for me. That day should have been in the last 30-90 days. If it was a year ago, you might not need to be having this exam. The questions you are being asked are on a script in front of the examiner. After examiners do this for a while, they get a sense of what is in front of them. It’s not too difficult to determine when someone is lying and struggling with memory. The above does not mean that examiners cannot be scammed because they can be.

What to Expect during the Medical Examination

You should expect the examiner performing your medical examination to evaluate the condition(s) listed on your claim for benefits. Depending on the number and type of disabilities claimed, the length of the examination will vary. Psychiatric examination or for multiple disabilities requires more time to evaluate. If necessary, the examiner may ask more questions about your disability history, review pertinent medical records, or order additional testing or examinations.
I discovered veterans lying and dealt with them by reporting this to the proper authorities at the VA. It’s a Federal criminal act to lie to gain monetary compensation. And the odds are you will be prosecuted. It simply isn’t worth it.
Examiners are generally good people trying to do a challenging job. Make it easy for them. I always advocated having the individual’s husband/wife in the room with me during the exam. As an examiner, I enjoyed having someone’s spouse with them. Husbands and wives can tell the truth much better than veterans. Ask your wife how well you’ve done in the past ten days versus your opinion of how you’ve been doing. Quite a dramatic difference if you are truthful!
Remember to report how you REALLY are doing and not how you’d like to be doing. One of the questions I always had a hard time asking was, “How are you doing today?” Most veterans want to be doing MUCH better than they really are. It’s like we know we can be doing better, and have done better, but our pride does not want to let anyone know how badly we really are doing. Veterans would answer the above question: “Well, I’m doing pretty good.” Should I write, “The veteran reports that he is doing pretty good?” Not if you want your claim adjudicated fairly.
  • Be on time or a little early
  • Be polite. Yelling at the examiner for the injustices you perceive will do nothing but alienate them.
  • Curse at your own risk. You can get your point across better with proper English.
The best answer I ever got from a veteran was from a former Marine Vietnam Veteran who said, 
“If I’m here, I can’t be doing very well now, can I? I haven’t been able to sleep for the past ten days over worrying about this exam, and my wife says I’m really grumpy, and the bill collectors call all of the time.”
This veteran just told me he couldn’t sleep due to anxiety, the heart of PTSD, was depressed (remember grumpy?), another critical facet of PTSD, and he’s had problems with his work history if he can’t pay his bills. He wasn’t angry about what he said. He was so matter of fact it took me a bit to realize what he had said. He could have been talking about having a cup of coffee for all of the emotions he expressed.
These are things I can explore further with the veteran. I don’t have to hunt or pull teeth for information. This veteran controlled the exam because he knew clearly about his problems and what he wanted to say. I spent some extra time with him. He ended up 100% service-connected for PTSD. He had his ducks in a row, paperwork all present, and had done enough clinical work before the exam that he knew his problems and, more importantly, how to express them to another person.

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