Unemployability Excerpt starts at 00:53:03 video
>I WANT TO TALK ABOUT THE BUDGET FOR A MINUTE IF I MAY. I WANT TO TALK ABOUT THE INDIVIDUAL UNEMPLOYABILITY CAP. CAN YOU EXPLAIN THE RATIONALE OF WHAT WENT THROUGH THE THOUGHT PROCESS THAT WENT THROUGH THIS?
>SECRETARY SHULKIN: SENATOR HELLER, MY STARTING POINT IS THAT WE ALWAYS HAVE TO DO BETTER FOR OUR VETERANS. WE HAVE TO DELIVER ON OUR COMMITMENTS THAT WE HAVE TO OUR VETERANS. THE PRESIDENT’S BUDGET INCLUDES SIGNIFICANT INCREASES IN BOTH DISCRETIONARY AND MANDATORY FUNDS AND MAKES CHOICE A PERMANENT PART OF FUNDING, BUT WE HAVE A RESPONSIBILITY TO USE OUR CURRENT FUNDS IN A WAY THAT MAKES SENSE, BEST FOR VETERANS AND TAXPAYERS. SO WE PROPOSE A PART OF THE PROCESS THAT WOULD REVISE THE INDIVIDUAL UNEMPLOYABILITY BENEFIT. THE IN THE BUDGET A PROCESS. THIS WAS PART OF A MENU OF OPPORTUNITIES. THAT WE HAD FOR THINKING HOW WE COULD MAKE THE BUDGET PROCESS BETTER. AS I BEGAN TO LISTEN TO VETERANS AND THEIR CONCERNS AND THOSE IN PARTICULAR, IT WAS CLEAR THIS WOULD BE HURTING VETERANS AND WOULD HURT VETERANS WHO CANNOT AFFORD TO HAVE THOSE BENEFITS TAKEN AWAY. I’M CONCERNED ABOUT THAT. WHAT I WOULD LIKE TO SAY IS THIS IS PART OF A PROCESS. WE HAVE TO LOOKING AT WAYS TO DO THINGS BETTER. I’M NOT GOING TO SUPPORT POLICIES THAT HURT VETERANS. SO I WOULD LOOK FORWARD TO WORKING WITH YOU AND ALL THE MEMBERS OF THE COMMITTEE ON FIGURING OUT HOW WE CAN DO THIS BETTER. WE HAVE BUDGET NUMBERS AND TARGETS WE HAVE TO HIT BUT WE SHOULDN’T BE DOING THINGS THAT ARE GOING TO BE HURTING VETERANS THAT CAN’T AFFORD TO LOSE THESE BENEFITS.
I APPRECIATE HEARING THAT. DO YOU KNOW HOW MANY VETERANS WOULD HAVE BEEN AFFECTED BY THIS
> THERE ARE 330,000 IN RECEIPT OF I.U. ABOUT 200,000 OF THOSE ARE UNDER THE EDGE OF 60 AND WOULD HAVE BEEN AFFECTED.
>SENATOR HELLER: IT WOULD HAVE BEEN RETROACTIVE
> IT WOULD HAVE BEEN POINT FORWARD BUT TO INCLUDE ALL VETERANS IN RECEIPT OF I.U. I DON’T BELIEVE WE’D PULL BENEFITS WE DISTRIBUTED
BACK — SENATOR HELLER: BUT IF YOU HAD THE BENEFIT YOU COULD LOSE THE BENEFIT YOU’RE RECEIVING.
>SECRETARY SHULKIN: THAT WAS THE PROPOSAL. BUT WE DO LOOK FORWARD TO WORKING WITH YOU TO FIGURE OUT HOW TO DO THIS
>BETTER. SENATOR HELLER: I APPRECIATE YOUR CONCERN, BUT DO YOU KNOW WHAT THE AVERAGE IS PER VETERAN, THE AVERAGE INTAKE PER VETERAN?
> AVERAGE PAYMENT? ROUGHLY $1,600. THAT’S ON TOP OF YOU HAVE TO BE RATED BETWEEN 60% TO 100% AND IT TAKES YOU TO TAMPA RARE 100%.16% IS — 60% IS ROUGHLY
>SENATOR HELLER: YOU CAN UNDERSTAND THE FINANCIAL BURDEN IT MAY POSE FOR AN INDIVIDUAL. WHAT I’M MOST CONCERNENED ABOUT IS THE LONG-TERM RETIREMENT TESTIMONY THEY MAY HAVE NOT PREPARED ORBEEN PREPARED IF — IN BELIEVING THAT THAT $1,600 MAY BE THERE.
SECRETARY SHULKIN: I THINK THAT’S THE ISSUE. THIS IS WHY WE HAD IDENTIFIED THIS AS AN OPPORTUNITY. I THINK IF WE WERE DESIGNING THE SYSTEM FROM THE BEGINNING, WE WOULDN’T HAVE USED UNEMPLOYMENT INSURANCE TO FUND PEOPLE’S RETIREMENT. I THINK THAT WAS THE CONFLICT. BUT THE END RESULT IS, THAT IS THE BENEFIT. TO WITHDRAW THIS BENEFIT FROM PEOPLE WHO RELY ON THAT MONEY IS SOMETHING THAT WOULD BE VERY DIFFICULT TO DO.
Director Shulkin refers to Unemployability as unemployment insurance. No where in the law is it referred to as unemployment insurance.
38 CFR 4.16 Total disability ratings for compensation based on unemployability of the individual.
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)
(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]