This article was originally published by Shana Dunn as a guest contributor with The Havok Journal on April 16, 2020.
For many service-connected veterans, the impact of the service-connected disability on the ability to function in the workplace does not match up with the level of compensation provided by VA. VA regulations state that the purpose of the VA Rating Schedule is to “represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” However, in many instances, veterans find themselves unable to work due to their service-connected disabilities, but their combined disability evaluations fall far below 100 percent.
Recognizing this frequent occurrence, VA regulations provide for an alternative means of obtaining a 100 percent evaluation: Entitlement to Individual Unemployability. 38 C.F.R. § 4.16 provides that “[t]otal 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.” To be eligible for unemployability a veteran must have one service-connected condition evaluated at 60 percent or a combined rating of 70 percent with one disability rated at 40 percent or more. If the veteran does not meet these criteria, he or she may still be eligible for unemployability under 38 C.F.R. § 4.16(b), which requires that VA submit the veteran’s case to the director of compensation service for extra-schedular consideration.
Meeting the evaluation criteria is just the first step. The veteran must then provide evidence that the service-connected disability causes and inability to “secure or follow a substantially gainful occupation.” What does it mean to “secure or follow a substantially gainful occupation?” VA appears unsure. VA regulations define the term “marginal employment,” which is employment at which a veteran earns less than the federal poverty level. Marginal employment is not gainful employment. Beyond that, the VA has refused to provide a definition. The Court of Appeals for Veterans Claims has long expressed frustration with VA’s lack of clarity. Because VA refused to provide a definition, in 2019 the Court took matters into their own hands. In Ray v. Wilkie, the court laid out several factors that, if relevant, VA must consider when evaluating a claim for unemployability. The factors are as follows:
the veteran’s history, education, skill, and training;
whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and
whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.
As a practical matter, when applying for unemployability benefits the veteran will be asked to complete VA Form 21-8940. This form provides the VA with the veteran’s , employment and education history. VA will request employment information for the last five years the veteran worked. Many employers will not provide information beyond the wage and dates of employment, but a statement from a former employer and/or coworker that details the problems the veteran had while employed is incredibly valuable. The veteran should also provide a detailed statement outlining the specific ways in which their disabilities affected their employment. The factors mentioned in Ray v. Wilkie should be specifically addressed.
The VA will usually request that the veteran present for examination by a VA doctor. The examiner will be asked to provide information on the occupational impairment caused by each service-connected condition. The determination that the veteran is unemployable is not made by the medical examiner, it is made by the VA adjudicator based on all evidence of record. Unfortunately, it is not uncommon for the VA to deny claims for unemployability regardless of the merit of the claim. The involvement of a skilled advocate is highly recommended.
If you or your spouse have questions about veterans disability benefits, please feel free to call us at (608) 490-9449 or contact us online.
Sources:
1. 38 C.F.R. § 4.1
2. 38 C.F.R. § 4.16(a).
3. 31 Vet. App., 58, 73 (2019)