MMRPartVSubpartiiChapterSectionB

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1、Section B. Determining Disability, Unemployability, and Marginal EmploymentOverviewIn This SectionThis section contains the following topics:TopicTopic Name1 (old 5)General Information on Determining Unemployability2 (old 6)Factors to Consider When Determining Unemployability3 (old 7)Determining Mar

2、ginal Employment4 (old 8)Determining Unemployability or Marginal Employment of Farmers5 (old 9)Obtaining Evidence of Disability6 (old 10)Determining Permanent and Total Disability7 (old 11)Effective Dates for Veterans Pension Awards8 (old 12)Requirements for Retroactive Payment of Veterans Pension U

3、nder 38 CFR 3.4001. General Information on Determining UnemployabilityIntroductionThis topic contains information on determining unemployability, including information on the ability to retain employment when unemployability is established the definition of substantially gainful employment the abili

4、ty to secure employment the evidence required to establish unemployability, and making unemployability decisions.Change DateDecember 13, 2005a. Ability to Retain EmploymentThe ability to retain employment once it is secured is a necessary element of employability. This ability is reflected in sustai

5、ned performance, as contrasted with temporary or sporadic work.b. When Unemployability Is EstablishedUnemployability is established for Veterans Pension purposes when the evidence shows an inability to secure and retain substantially gainful employment by reason of disability, as well as related fac

6、tors.c. Definition: Substantially Gainful Employment Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. d. Ability to Secure EmploymentThe

7、 “ability to secure employment” refers to the Veterans success in obtaining work of the type the Veteran is capable of performing and that is available in his/her community. Note: The type and amount of evidence needed to establish that the Veteran has made reasonable efforts to secure employment wi

8、ll vary with the facts of the individual case.e. Evidence Required to Establish UnemployabilityIn many instances, the Veterans unsupported statement will be enough evidence to establish unemployability, if it is consistent with the other facts of the case, such as a good work record.In other instanc

9、es, evidence is required from past and prospective employers. However, bear in mind that some employers may be reluctant to say they have refused to hire an individual because of age, or age and disability combined.f. Making Unemployability DecisionsBoth the degree of disability and the Veterans age

10、 are determinative factors as to unemployability. Consider age, education, occupational background, and other related factors when making a decision of unemployability in Pension claims.If basic eligibility is present, do not hesitate to apply 38 CFR 3.321(b)(2) if disability percentage requirements

11、 are not met.Exercise restraint in discontinuing eligibility to Pension benefits for Veterans already on the rolls merely because they have recently regained employment. Income limitations generally preclude both Current-Law Pension and Section 306 Pension recipients who are working and whose employ

12、ability is in question from receiving benefits.If benefits have been discontinued for an extended period based on excessive income from earnings, a redetermination of unemployability on a factual basis is required.2. Factors to Consider When Determining UnemployabilityIntroductionThis topic contains

13、 information on the factors to consider when determining unemployability, including determining unemployability - if the Veteran is unable to perform household duties- due to moderate progression of disability- when the Veteran reaches retirement age, and- due to character or behavior disorders hand

14、ling unemployment resulting from offenses against society, and considering unemployability due to loss of industry in the community.Change DateDecember 13, 2005a. Inability to Perform Household DutiesA Veteran whose sole employment consists of performing household duties may qualify as unemployable,

15、 if the Veteran is no longer able to perform the principal household duties without substantial help.b. Moderate Progression of DisabilityThe fact that, prior to discontinuing employment, a Veteran worked full-time with about the same degree of disability as presently exists is not, in itself, a pro

16、per basis for holding the Veteran employable. Even moderate progression of disabling conditions, when considered with advancing age, may compel a person who had been working despite disability to terminate employment.c. Reaching Retirement AgeDo not use the discontinuance of work upon reaching manda

17、tory or optional retirement age as the sole reason for considering a Veteran to be unemployable. The determinative factors of unemployability are whether the Veterans disability and age prevent the Veteran from obtaining another position. Steady employment over a long period is ordinarily an indicat

18、ion of the Veterans desire to work.Note: Inability to compete in the labor market because of age or disability is a valid basis for a finding of unemployability, even though the Veteran did not actually become unemployed because of a particular disability.d. Character and Behavior DisordersA permane

19、nt and total disability Pension rating may be authorized for a congenital, developmental, hereditary, or familial condition. Even if a Veteran with one of these conditions is less than totally disabled, the Veteran may still be unemployable because of the nature of the disability, and a finding of u

20、nemployability would be in order.e. Offenses Against SocietyIf a personality disorder is manifested by behavior offensive to society, and the offense against society results in imprisonment or custodial care, it is this offense, rather than the individuals disability, which removes the individual fr

21、om the labor market. In a case such as this, there is no basis for a finding of unemployability. Example: A Veteran with an antisocial personality disorder is imprisoned for assault with a deadly weapon. In this case, the Veterans unemployment is due to removal from a work-possible environment for a

22、n offense against society, rather than his/her personality disorder.f. Loss of Industry in the CommunityThe fact that an industry closes or is removed from the community where the Veteran resides, resulting in the loss of the Veterans job, may have a bearing on whether the Veterans disability preven

23、ts further employment. Do not use the loss of industry as the sole basis for a finding of either employability or unemployability.3. Determining Marginal EmploymentIntroductionThis topic contains information on determining marginal employment, including the qualifying criteria for marginal employmen

24、t exceptions to the qualifying criteria for marginal employment, and factors pertinent to the issue of marginal employment.Change Date December 13, 2005a. Qualifying Criteria for Marginal EmploymentMarginal employment exists if, by reason of age and disability, the Veteran works less than one-half t

25、he usual hours, or receives less than one-half the prevailing community wage for the particular occupation.Either of the criteria listed above will suffice to qualify as marginal employment under 38 CFR 4.17(a).b. Exceptions to the Qualifying Criteria for Marginal OccupationsIn many areas there are

26、jobs available where the pay is too low to attract the able-bodied and which, therefore, must be filled by older or disabled persons. Such jobs are still considered marginal employment, even though they require the employees to be present for a full work week, and pay the same for the particular occ

27、upation throughout the community.Jobs such as these are generally sedentary and are often of the type that qualify under 38 CFR 3.342(b)(4), such as employment in a sheltered workshop. c. Factors Pertinent to the Issue of Marginal EmploymentConsider the following factors when determining whether a V

28、eteran is marginally employed: the Veterans prior work history and earnings, compared to the present, which may be related to and reflect the extent of the Veterans disability whether there has been a marked reduction of earnings, which may indicate a comparable decrease in mental or physical capabi

29、lities the established wage for a particular type of job in the community the opportunity for employment in the community, and the nature of the Veterans disabilities, in relation to the work for which the Veteran is qualified by experience, education, or training.Note: Do not regard any single fact

30、or, in itself, as determinative.4. Determining Unemployability or Marginal Employment of FarmersIntroductionThis topic contains information on determining the unemployability or marginal employment of farmers, including computing the net return from a farm to determine unemployability considering fa

31、rm size considering supplementation of farm income prior to disablement considering the type of work considering past work history comparing the Veterans income and hours of work with those of other farmers, and considering the Veterans supervision of a farm.Change Date December 13, 2005a. Computing

32、 the Net Return From a Farm In computing the net return from a farm operation when members of a Veterans family work without pay, deduct the reasonable value of such labor from the farms total net return to determine how much of the income results from the Veterans own contribution of labor or super

33、vision. Important: Use this procedure for unemployability purposes only, and not to determine annual income.b. Considering Farm SizeMany farm operations are so small and the income so meager that, even though the disabled Veteran is doing all of the work required, the Veteran might be considered as

34、only marginally employed. Do not base a denial solely on the fact that the Veteran never operated a farm on a large scale.c. Considering Supplementation of Farm Income Prior to DisablementConsider whether the Veteran supplemented farm income by working as a hired laborer for others before becoming d

35、isabled and whether, because of physical impairment, this source of income is no longer available.d. Considering the Type of Work Consider whether the Veteran is performing light chores, versus heavy farm labor, and seasonal labor, as compared to year-round work. Higher degrees of disability will li

36、mit the scope of farm work that may be performed.e. Considering Past Work HistoryConsider whether the Veteran was required by age or disability to change from some other type of full-time employment to a marginal farming operation.f. Comparing the Veterans Income and Hours of Work With Those of Othe

37、r Farmers If necessary, compare the Veterans income and hours of work with those of other farmers in the area engaged in comparable operations. Contact the local county agricultural representative for this information, if necessary.g. Considering a Veterans Supervision of a FarmDo not consider the f

38、act that a Veteran supervises a farm operation as evidence of employability, except when the farm operation is large enough to warrant a full-time supervisor. 5. Obtaining Evidence of DisabilityIntroductionThis topic contains information on obtaining evidence of disability, including obtaining Socia

39、l Security (SS) disability records, and requesting evidence of unemployability concurrently with a request for examination.Change DateDecember 13, 2005a. Obtaining SS Disability RecordsObtain and consider complete copies of Social Security Administration (SSA) records used in the SSA determination o

40、f disability if the available evidence is insufficient to award pension benefits, and the record shows that the Veteran is receiving Social Security (SS) benefits because of disability. Reference: For more information on requesting SSA information, see M21-1, Part III, Subpart iii, 3.A.b. Requesting

41、 Evidence of Unemployability Concurrently With a Request for ExaminationIf evidence of unemployability is required, request it concurrently with a request for examination.To avoid unnecessary development, apply the rule “the greater the disability, the less evidence of unemployability.”6. Determinin

42、g Permanent and Total DisabilityIntroductionThis topic contains information on determining permanent and total disability, including information on establishing the permanence of total disability the actions on anticipated permanent residuals, and rating Day Hospital program cases.Change DateDecembe

43、r 13, 2005a. Establishing the Permanence of Total DisabilityUnder 38 CFR 3.342(b)(2) establish the permanence of total disability as of the earliest date consistent with the evidence in the claim, and establish permanence after six months hospitalization without improvement in tuberculosis and other

44、 disabilities requiring hospitalization for indefinite periods. Note: Consider the six-month period a maximum, rather than a minimum, waiting period. b. Actions on Anticipated Permanent ResidualsTake the following actions if a Veteran suffers a heart attack, stroke, accident, and so forth: Evaluate

45、the anticipated permanent residuals from the degree of recovery shown within a comparatively short time after the occurrence. Consider the impact of the Veterans age, educational level, occupational background, and prior physical condition on the anticipated level of functional impairment. Do not de

46、fer rating action until the residual disability can be established with absolute certainty. If a permanent, total disability is anticipated, but not definitely established, prepare a favorable rating decision and schedule a future review examination.c. Rating Day Hospital Program CasesThe Veterans H

47、ealth Administration Day Hospital program is a post-hospital care or outpatient program which provides Veterans with a brief, but very intensive, psychiatric regimen.Since there is the potential for recovery under intensive treatment, exercise care in establishing permanent and total disability for

48、Pension entitlement based solely on records showing participation in the Day Hospital program.7. Effective Dates for Veterans Pension AwardsIntroductionThis topic contains information on the effective dates for Veterans Pension awards, including the effective date of a Veterans Pension award conditi

49、ons for awarding Pension retroactively under- 38 CFR 3.400, and- Public Law (PL) 107-103.Change DateApril 21, 2015a. Effective Date of a Veterans Pension AwardIn general, for claims received after September 30, 1984, the effective date of a Veterans Pension award is the date the Department of Vetera

50、ns Affairs (VA) received the claim, see 38 CFR 3.400(b).b. Awarding Pension Retroactively Under 38 CFR 3.400Under 38 CFR 3.400(b)(1)(ii)(B), VA may award Veterans Pension retroactively for up to a period of one year before the date of claim, but not earlier than the date of permanent and total disab

51、ility, if all the following conditions are met: The Veteran files a claim for a retroactive award within one year from the date the Veteran became permanently and totally disabled. The Veteran was prevented from applying for Pension by a disability, not of misconduct origin, and not necessarily the

52、disability upon which the permanent and total disability status is based. The disability prevented the Veteran from filing the Pension claim for a period of at least 30 consecutive days following the beginning date of permanent and total disability.c. Awarding Pension Retroactively Under PL 107-103E

53、ffective September 17, 2001, Public Law (PL) 107-103 eliminated the requirement for a disability rating determination for Veterans who had either attained age 65 or were presumed disabled based on nursing home status or being found disabled by SSA. PL 107-103 is considered liberalizing legislation s

54、ubject to 38 CFR 3.114. Therefore, Veterans Pension may be awarded retroactive for up to one year prior to the date of receipt of claim if the Veteran met any of the following criteria continuously from September 17, 2001 until the date of claim: age 65 found disabled by SSA, or a patient in a nursi

55、ng home for long-term care because of disability. After entitlement to Veterans Pension has been granted and the VSR determines that the Veteran meets the above criteria, the VSR should send the Veteran a development letter requesting income and expense information to determine entitlement from one

56、year prior to the date of receipt of claim. Important: Do not establish an end product for control. Inform the Veteran that he/she has one year to establish entitlement to the earlier date. 8. Requirements for Retroactive Payment of Veterans Pension Under 38 CFR 3.400IntroductionThis topic contains

57、information on the requirements for retroactive payment of Veterans Pension under 38 CFR 3.400, including information on what constitutes a qualifying disability for a retroactive Pension award under 38 CFR 3.400, and rating decisions to dispose of the issue of a retroactive effective date under 38

58、CFR 3.400.Change DateApril 21, 2015a. What Constitutes a Qualifying Disability for a Retroactive Pension Award Under 38 CFR 3.400To qualify for a retroactive Pension award under 38 CFR 3.400(b)(1)(ii)(B), the claimed disability must be so incapacitating that it reasonably could have prevented the Ve

59、teran from filing an application for Pension. A disability will meet this requirement when it is so severe as to normally require hospitalization and intensive treatment prevents the Veteran from filing an application from the date he/she first became permanently and totally disabled, and continues

60、for a period of at least 30 consecutive days. Note: Although the qualifying disability must have continued for a period of at least 30 consecutive days, it is not necessary for it to have continued for the entire retroactive period.Example: Examples of this type of disability are a severe heart atta

61、ck cardiovascular accident, or critical, incapacitating injury requiring intensive care and/or treatment. b. Rating Decision to Dispose of the Issue of a Retroactive Effective Date Under 38 CFR 3.400If the Veteran claims retroactive benefits under 38 CFR 3.400(b)(1)(ii)(B) with the application for P

62、ension, and the evidence is sufficient to determine whether the claimed disability qualifies, dispose of the issue with a rating decision granting or denying permanent and total disability, or after commencement of Pension payments, prepare a separate disability rating decision disposing of the issu

63、e.Notes: Do not delay granting Pension benefits from the date of receipt of the claim when the evidence shows the Veteran is permanently and totally disabled, but the issue of retroactive payment cannot be immediately resolved. If the Veteran has not claimed a retroactive payment under 38 CFR 3.400(b)(1)(ii)(B), but the RVSR determines that a qualifying disability may exist, the RVSR should instruct the authorization activity to advise the claimant that retroactive benefits may be payable. Do not establish a pending control in this event.